[2022] KEHC 15096 (KLR)

Rono v ODPP (Criminal Appeal E003 of 2021) [2022] KEHC 15096 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15096 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Appeal E003 of 2021

RN Nyakundi, J

November 9, 2022

Between

Marius Cheruiyot Rono

Appellant

and

ODPP

Respondent

Judgment

1. The appellant herein was charged with the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The particulars of the charge are that on the October 15, 2016 at Kaptel location within Nandi county jointly with others not before the court, while armed with dangerous weapons namely pangas and rungus robbed RC of two mobile phones make Tecno IMEI 86017xxxxxxxxxx, LG touch screen and cash Kshs 5300/- all valued at Kshs 30,300/- and at immediately before and immediately after the time of such robbery used actual violence to RC.

2. The accused pleaded not guilty to the charges and the matter continued to a full trial. The prosecution called a total of four (4) witnesses in support of their case. Upon considering the evidence and the testimony of all the witnesses the trial court found the appellant guilty and sentenced him to life imprisonment.

3. The appellant being dissatisfied with the decision of the court appealed against the conviction and sentence of the trial court vide a Petition of appeal filed on November 23, 2020. The appeal is based on the following grounds;a.That the learned trial magistrate erred in law and fact by convicting the appellant but failed to note that there was no description of figures when the first report was made to the police.b.That the learned trial magistrate erred in law and fact by failing to find that an identification parade ought to have been conducted.c.That the learned trial magistrate erred in law and fact by applying the doctrine of recent possession to secure an unsafe conviction.d.That the learned trial magistrate erred in law and fact by relying on a transcript that was made without proof of ownership.e.That the learned trial magistrate erred in law and fact by failing to find no photographic crime report was produced.f.That the learned trial magistrate erred in law and fact by failing to draw an adverse inference against the prosecution failing to avail crucial witnesses who were present during the recoveries.g.That the learned trial magistrate erred in law and fact by failing to find that the charges were not proved beyond reasonable doubt and in failing to accord the benefit of the doubt to the appellant.h.That further grounds shall be adduced at the hearing of this appeal.

4. The appellant filed an amended grounds of appeal with his submissions wherein the grounds of appeal were as follows;a.That the learned trial magistrate erred in law and in fact in failing to observe that the charge sheet as framed was defective and amounts to duplex charges.b.That the learned trial magistrate erred in law and in fact by failing to make a finding that the prosecution failed to summon vital witnesses mentioned during the trial for a just decision to be reached.c.That the learned trial magistrate erred in law and in fact by relying on exhibits whose prosecution failed to meet the required standard of proof.d.That the learned trial magistrate erred in law and in fact in not appreciating that the evidence of recovery of stolen items was not sufficient to warrant a safe conviction.e.That the learned trial magistrate erred in law and in fact in failing to resolve the inconsistency in the prosecution evidence.f.That the learned trial magistrate erred in law and in fact in misapplying the doctrine of recent possession and circumstantial evidence to convict the appellant.g.That the learned trial magistrate erred in law and in fact in shifting the burden of proof to the appellant.h.That the learned trial magistrate erred in law and in fact in failing to find that an identification parade ought to have been conducted.

5. I note that some of the grounds have been repeated by the appellant and the same shall be consolidated when establishing the issues for determination.

Appellant’s Case 6. The appellant’s case is that the charges as framed were defective as it did not conform to the rules of framing charges as contained in section 137 of the Criminal Procedure Code. He cited Simon Materu Munialu vs Republic (2007) eKLR in support of this submission. further, he contended that identification is a mandatory requirement for cases of this nature and that an identification had to be conducted without which the conviction is unsafe.

7. The appellant submitted that the prosecution case was based on circumstantial evidence and he cited the case of R vs Kipkering Arap Koskei & Another (1949) 16 EACA 135 in support of his submission. He submitted that he was not in possession of the mobile phone at the time of his arrest and therefore the threshold set out in Isaac Nganga Kahiga alias Peter Nganga Kahiga vs Republic - CR App 272 of 2005.

8. The identification of the appellant is non-existent as the offence was committed at night therefore the prosecution case lacks corroboration of identity. PW1 could not recognize the assailant as stated in cross examination. In the absence of direct testimony on the identity of who committed the offence an inference can be drawn from the doctrine of recent possession that the appellant was involved in the robbery.

9. The exhibits that were brought before the court were an afterthought as the knife belonged to the complainant. It is evident that there were no pangas and rungu as there were none brought before the court to corroborate the evidence of the complainant. The presentation of the mobile phone as an exhibit did not meet the required standard of proof as the complainant informed the court that she had shown nothing to prove her ownership. He cited the case of Daniel Muthomi Marimi vs R (2013) eKLR in support of this submission.

10. The appellant contended that the evidence of PW5 that he did not arrest the appellant with the mobile phone at the hotel raises many questions. It was the testimony of PW5 that together with PC Kagunda they broke into the hotel days after the arrest of the accused and found the phone under a drawer and they took the phone and the two sim cards. He claimed that the IMEI number captured on the charge sheet was different from that of the phone recovered which was a scheme to suit the wishes of the complainant.

11. The failure of the prosecution to summon the witnesses who were at the scene during the recovery is fatal to the prosecution case. Relying on the case of Okeno v R (1972) EA the appellant contended that the prosecution evidence was inconsistent to secure a conviction. He asked that the appeal be allowed.

Respondent’s Case 12. Learned counsel for the respondent submitted that Section 296 (2) of the Penal Code in dealing with the offence of robbery with violence spells out the ingredient as follows: -(1)If the attackers are in company of two or more persons.(2)Armed with offensive or dangerous weapons.(3)Beats, strikes wounds or uses violence on a victim at the time of incident.

13. The complainant in her testimony clearly stated that as she was in the house three (3) armed robbers entered the house she saw them since the lights were on but upon entering the house they switched off the lights. They were armed with a knife and pangas. They demanded for money and when she shouted, one of them strangled her and another hit her with a stick on the right leg. She was also cut on the back with a panga and threatened with a knife as they demanded for cash. They robbed her of Kshs 5,300/=, and a mobile phone. She sustained injuries as a result of which she was treated by PW1, the clinical officer.

14. The complainant testified that a week after the incident took place police officers from Kapsabet police station called her to the station and she was able to identify her phone which had a peculiar mark on the back. According to the investigating officer, PW4 PC Omondi he sent details of the serial and IMEI Number to Safaricom Company Limited. Investigations revealed that the appellant used the complainant’s phone from November 14, 2016 and this was corroborated by PW6, an expert from Safaricom Company Limited. The appellant was arrested with the complainant’s mobile phone and she positively identified it as hers and that she lost it when the armed robbers invaded her home about one week ago.

15. The appellant was found with the complainant’s phone in a hotel in Kimondi-Kaptel which belonged to his father. Investigations revealed that both the complainant and the appellant emanated from the same village. The doctrine of recent possession linked the appellant to this offence.Any doubt on identification is cast away be the doctrine of recent possession as was held in Nganga Kahiga alias Peter Nganga Kahiga vs R Criminal Appeal No 272/2005.

16. The appellant herein has been tried twice, at first the appellant was tried after which he was sentenced to suffer death. He moved the court on the raising the Muruatetu’s precedent and that the court ordered for a retrial. The matter was handled by Hon. Wasike and upon going on a transfer Hon. Orwa took over after which the appellant was sentenced to life imprisonment. The sentence was lawful and lenient considering the fact that the appellant had serious previous records.

17. The appellant, in his defence stated that he had a relationship with the complainant but they stopped. He stated that he did not know that the complainant was attacked and that at the police station, he was shown a phone which he denied knowing. This defence was a sham, it did not shake the prosecution’s evidence which was strong and water tight against him. The defence evidence was overshadowed by the evidence tendered by the prosecutions’ witnesses.

18. The appellant was charged under Section 295 as read with 296 (2) of the penal code. Learned counsel for the respondent submitted that the defect is not fatal and that it is curable in law. The omission contained in the charge sheet is a minor one, it is common knowledge that the sentencing Section for simple robbery is Section 296 (1). The court of appeal in Joseph Njuguna Mwaura & 2 others vs- R [2013] eKLR discussed in details the effect of duplicity and Simon Materu Munialu vs R [2007] eKLR Criminal Appeal 302 of 2005 held the same.

19. The respondents’ position is that the appeal has no merit and should be dismissed.

Issues for Determination1. Whether the charge sheet was defective2. Whether the prosecution proved its case to the required standard of proof3. Whether the sentence is harsh/excessive 20. This being the first appellate court, it has a duty imposed on it by law to carefully examine and analyse afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of seeing and hearing the witnesses and observing their demeanour and so the first appellate court must give allowance of the same. This was well put in the well-known case of Okeno V Republic [1972] EA 32 where the court stated as follows:The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala -V- R (1975) EA 57). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.'

Whether the charge sheet was Defective 21. The appellant contended that the charge sheet was defective. Section 382 of the Criminal Procedure Code provides:'Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice.Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.'

22. It is trite that the defect shall alter the finding of a court only if the said defect shall occasion a failure of justice. I have perused the record and the charge sheet states that the charge was robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The appellant has failed to demonstrate to this court how the said charge is defective and therefore I find there is no merit in the claim that the charge sheet was defective.

Whether the Prosecution proved its case to the required standard 23. The appellant was charged with the offence of robbery with violence. What constitutes the offence of robbery with violence was well captured in the case ofOluoch vs Republic (1985) KLR where the Court of Appeal stated as follows: -Robbery with violence is committed in any of the following circumstances:

24. The offender is armed with any dangerous and offensive weapon or instrument; or

25. The offender is in company with one or more person or persons; or

26. At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.'

27. In the case of Dima Denge Dima & Others vs Republic, Criminal Appeal No 300 of 2007, it was stated that:The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.'

28. The appellant was found in possession of the phone of the make Tecno. It was his contention that the complainant did not prove that the phone belonged to her. Further, that she was unable to identify them as the robbers who robbed her were wearing hoods. However, the trial court convicted the appellant based on the doctrine of recent possession. In the case of Isaac Nganga Kahiga alias Peter Nganga Kahiga Vs Republic CA Nyeri Cr Appeal No 272 of 2005, the Court of Appeal stated:'It is trite that before a Court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first, that the property was found with the suspect,secondly, that the property is positively proved to be the property of the complainant, thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant.The proof as to time, as was been stated over and over again, will depend on the easiness withwhich the stolen property can move from one person to the other.'

29. It is clear that the stolen phone was recovered at the hotel run by the accused, and belonging to his father. Further, by virtue of the testimony of PW4 it is clear that upon getting data from Safaricom, it was proven that the complainant was the initial user of the phone. It was also proven that the appellant was using the phone after it had been stolen and the line in the said phone was registered to him. It is not in doubt that the phone had been stolen from the complainant recently. It is clear from the evidence on record that the elements of the doctrine of recent possession were satisfied. He was unable to offer an explanation as to his possession of the phone and therefore it follows that the trial court was correct in its finding that he was liable for the offence.

30. From the testimony of PW3, it is clear that the complainant sustained injuries from the attack by the robbers. Given that the appellant was found in possession of the stolen phone and he was unable to explain how he came into possession of the same, it follows that the court relied on circumstantial evidence to convict him. Reliance on circumstantial evidence as a basis of conviction was established by the court of appeal in Sawe v R [2003] KLR 364, where the Court of Appeal held: -'In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis is on the prosecution and always remains with the prosecution. It is a burden, which never shifts to the party accused.'

31. It is my view that the facts justify the drawing of the inference that the appellant was one of the robbers who attacked and robbed the complainant. The prosecution proved its case to the required standard of proof and therefore there is no reason to allow the appeal.

Whether the Sentence is Harsh/excessive 32. I have perused the proceedings of the trial court, and I note that the present sentence was the result of a retrial of the accused person. There is no evidence that the appellant was subjected to mitigation in the trial court before sentencing. In the premises, this court shall consider the mitigation of the accused person as per his submissions before making a determination on the sentence.

33. The jurisprudence on Mandatory sentencing is constantly shifting in the Kenyan Judicial landscape. It is now clear that the mandatory sentences prescribed by the legislature are considered unconstitutional as they create a situation where the courts’ independence is compromised and it interferes with the doctrine of separation of powers. In Criminal Appeal No 84 of 2015, Joshua Gichuki Mwangi vs R (2022) (Unreported) the Court of Appeal pronounced itself as follows;We acknowledge the power of the Legislature to enact laws as enshrined in theConstitution. However, the imposition of mandatory sentences by the Legislature conflicts with the principle of separation of powers, in view of the fact that the legislature cannot arrogate itself the power to determine what constitutes appropriate sentences for specific cases yet it does not adjudicate particular cases hence cannot appreciate the intricacies faced by judges in their mandate to dispense justice. Circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenize them and justify a general sentence.This being a judicial function, it is impermissible for the Legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence.This goes against the independence of the Judiciary as enshrined in Article 160 of theConstitution. Further, the Judiciary has a mandate under Article 159 (2) (a) and (e) of theConstitution to exercise judicial authority in a manner that justice shall be done to all and to protect the purpose and principles of theConstitution. This includes the provision of Article 25 which provides that the right to a fair trial is among the bill of rights that shall not be limited.

34. The court is guided by the principles established Francis Karioko Muruatetu & another v Republic [2017] eKLR, now referred to as Muruatetu 1 where it held;[48]Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of theConstitution; an absolute right.[50]We consider Reyes and Woodson persuasive on the necessity of mitigation before imposing a death sentence for murder. We will add another perspective. Article 28 of theConstitution provides that every person has inherent dignity and the right to have that dignity protected. It is for this Court to ensure that all persons enjoy the rights to dignity. Failing to allow a Judge discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, violates their right to dignity.

35. Whereas the Supreme Court later issued directions in Muruatetu 2 that the principles apply only to murder cases, it is my strong view that such application will be discriminatory and unconstitutional. It is contradictory to apply a principle intended to remove the shackles of the legislature on the independence of the judiciary vide mandatory sentences and then on the other part issue directions that cause mandatory sentences to be applied to all offences save for the offence of murder, consequently reinstating the mandatory nature of sentences and once again interfering with the separation of powers.

36. The upshot of the foregoing is that the court shall consider the mitigation of the accused person before determining the sentence and whether it was commensurate with the offence.

37. The appellant submitted that he is a married man and has three children in school. His wife passed away in 2019 due to breast cancer and the children have no guardian to take care of them. Since his incarceration, he has undertaken a rehabilitation program which will enable him to earn a living for his children. He is remorseful and has learned his lesson in prison. He asked that the court grant him a sentence that is lenient and appropriate.

38. I note that the trial court, on re-hearing the matter had the opportunity to peruse criminal case number 1908/2016 and 2322 of 2012 wherein the appellant was charged with the offences of Housebreaking and stealing and attempted rape, both of which he was convicted. It was established that he was a repeat offender.

39. Whether one is talking of Muruatetu one of 2017 of Muruatetu two of 2021 the spirit of the relevant considerations for determining quantum of sentence remains to be the yardstick in which to exercise discretion by the sentencing court. Such factors include the following;i.Nature and gravity of offenceii.Penalty provided for the offenceiii.Manner of commission of offenceiv.Proportionality between crime & punishmentv.Age and sex of the offender Page 3 of 25vi.Character of the offendervii.Antecedents (criminal history etc.)viii.Possibility of reformsix.Impact of offence on social order and public interestx.The personality of the offender as revealed by his age, character, antecedents and other circumstances and the traceability of the offender to reform must necessarily play the most prominent role in determining the sentence. A judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. See.(i)Sushil Murmu Vs State of Jharkhand, (2004) 2 SCC 338(ii)Surjit Singh Vs Nahar Ram, (2004) 6 SCC 513‘Proper sentence’: what is?: Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionality. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically. See: Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257.

40. Given the circumstances of this case on aggravating and mitigating factors I have pointed out and further the Criminal Procedure Code section 333(2) which requires this court to take into account the period spent by a convict in lawful custody in imposing the term of imprisonment there is need to deduct that period from the sentence imposed. From the record the appellant was arraigned in court on December 7, 2016. Thereafter he was tried and convicted on February 20, 2020. That being the case, the convict had spent three years, two months and two weeks which period ought to be credited in his favour. That burden has been discharged by the convict in so far as challenging the punitive or excessive limb of the sentence. In the circumstances I therefore find sufficient grounds to interfere with the sentence of life imprisonment by substituting it with a term of twenty-eight (28) years custodial sentence with effect from February 20, 2020. 14 days right of appeal. Orders accordingly.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 9THDAY OF NOVEMBER, 2022. ............................R. NYAKUNDIJUDGECoram: Hon. Justice R. NyakundiMr Mugun for the stateCheruiyot Melly & Associates