[2017] KEHC 3584 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

HCCRA NO. 114 OF 2017

(FORMERLY NAKURU HCCRA NO. 307 OF 2015)

VERSUS

RUEBEN ONDIEK MICHIRA...................................................APPELLANT

VERSUS

REPUBLIC..........................................................................PROSECUTOR

[Being an Appeal from the original conviction and sentence on 30. 11. 2015 by the Senior Resident Magistrate’s Court at Eldama Ravine (Hon R. Yator, SRM) in Criminal Case No. 987 of 2014]

JUDGMENT

Introduction

[1] The Appellant appealed from his conviction and sentence of life imprisonment imposed on 30th November 2015 for the offence of robbery with violence contrary to section 296(2) of the Penal Code whose particulars were that he had on the 15th day of April 2014 at Kahoya village within Koibatek Sub-County, being armed with an offensive weapon namely a panga robbed Phillemon Kidogo of a Mobile phone make Motorola FM and Ksh.4. 500/- all valued at Ksh.7000/- and immediately before the time of such robbery injured the said Phillemon Kidogo..

Grounds of Appeal

[2] The appellant appealed from the trial court judgment and sentence primarily on the grounds that the conviction was not supported by the weight of the evidence and that there were numerous conflicts, inconsistencies and contradictions in the prosecution witness and that the defence evidence raised considerable doubts as to strength of the prosecution case.

[3] The DPP did not oppose the appeal or support the conviction pointing out on their part that there was contradictory evidence of the money stolen and the theft of the mobile phone was not proven in view of the defence evidence that the complainant usually gave him his mobile phone for safe custody whenever he drunk, and that as regards the use of violence, it was only the uncorroborated evidence of the complainant that he had been attacked by the appellant, and having found contradictions in the evidence of the complainant as regards the theft of the money, the trial court ought to have warned itself of the danger of convicting on the evidence of a single witness.

[4] The issue for determination is, therefore, whether there was sufficient evidence to support the charger of robbery with violence to justify a conviction as found by the trial magistrate.

Determination

[5] I have considered the evidence presented by the prosecution and the defence in this case in accordance with the duty of a first appellate Court to re-evaluate the evidence presented before the trial court and to make its own conclusions before determining whether the conclusion of the trial court is to be upheld or set aside [Okeno v. R(1972) EA 32].

Proof of theft

[6] There was evidence by the complainant that he bought the accused alcohol and two Kagumus and himself two cigarettes, which on cross-examination, he put at Ksh.140. Apart from the complainant’s statement that he received Ksh.1000 by mobile money through his phone, there no clear evidence on the alleged Ksh.3,500 payment. When next morning he sought to have PW3 hire a motor bike to take him home, he only told PW3 of Ksh.500/- from his shirt pocket. No reference was made of some Ksh3,500/- even after he said that PW3 did not find the Ksh.500/- In addition, the first report account of the alleged theft given to PW4 was that “He told us he was heading to Siriat village to work and the accused son of Michira beat him and took Ksh.500/- and his Motorola phone.” To the Investigating Officer, PW5 the complainant must have given a different story as the witness said that “as per the PW1 evidence he said on 15. 04. 2014 at 6pm while with accused person heading for Boito trading centre where Pw1 withdrew money amounting to Ksh.4500/-”. On account of these contradictions in the evidence of PW1, PW3 and PW5, I do not find that the alleged theft of Ksh.4,500/- has been proved.

[7] As regards the mobile phone, the defence evidence that the complainant had given the phone, as was usual, to the appellant and the latter’s return of the same to the complainant by giving it, in his absence at home, to his niece raises a clear doubt whether the appellant had stolen the phone or the appellant had kept the phone on request by the complainant when they were drinking as testified by the appellant.

Proof of attack and injury

[8] From his own testimony, PW1 gives an out of the blue attack by the appellant who he acknowledges in cross-examination as “Your are my friend and we have never disagreed” and whom he had just bought alcoholic drinks-

“The accused asked me to buy him tea, he entered a club in Boito. I bought him alcohol of Ksh.60/- namely Horizon and took one take away drink…. We went with the accused person … the accused person drunk as we went. I bought airtime at a shop at Kisorobi; accused person took a stick and told me we take a short cut in Kahoya. 8 steps from the gate of one Simeon… I stood aside as the accused person stood behind me. I sat down to top my airtime. The accused threw a stick and hit both my hands: the Motorola phone which I was holding fell down. I stood up to ask the accused person what the problem was. He took a panga and hit me with the blunt side on right side of my hip; I fell down on the ground and he removed from my right pocket Ksh.3500/- being payment. In total, he went with Ksh.4500/- he also picked my phone and run away. He left me lying down, I heard the voice of Simeon’s wife talking to another woman, I screamed for help. The two women came to where I was and helped me turn and put me beside the road.”

[9] It is unbelievable the serious injuries described by the medical expert as discussed below, his alleged paralysis and the on and of unconsciousness as alleged by the PW4 who also thought that the complainant was drunk, could have been caused by the slight assault described by the complainant himself as follows:

“The accused threw a stick and hit both my hands: the Motorola phone which I was holding fell down. I stood up to ask the accused person what the problem was. He took a panga and hit me with the blunt side on right side of my hip; I fell down on the ground….”

Where, for example, did the blood witnessed by the doctor (PW3) come from,if the accused on hit him on the hands with a stick and on his hip by the blunt side of a panga?

[10] I do not find that the ingredient of the offence of robbery with violence contrary to section 296 (2) of the Penal Code of wounding, beating, striking or using any other personal violence to any person was proved as against the appellant.

Inconsistencies in prosecution evidence

[11] The medical evidence of PW3 was that the complainant had been brought into hospital on 16th April 2014 the day after the alleged assault “with blood stained clothes and he had not been put on any medication and could not walk well due to injuries and they were one week old. The type of weapon was sticks, fists and leg. He had sustained grievous harm.” This evidence is inconsistent with the complainant’s own testimony that the accused person threw a stick which hit both his hands and then hit him on the right side of his hip with the blunt side of the panga whereupon he fell and the accused after taking the money from his pocket and mobile phone ran away. What was the cause of the excessive injuries described by the medical expert and classified as grievous harm?

[12] Why does the testimony of the complainant PW1 as to the attack not correspond to the evidence of the same by the Investigating Officer, PW5 who testified as follows:

“I visited the scene and as per the PW1 evidence he said on 15. 04. 2014 at 6pm while with accused person heading for Boito trading centre where PW1 withdrew money amounting to Ksh.4,500/- and had his phone, accused person picked a stick and hit him on the arms and he fell; accused person hit PW1 using he blunt part of the hand, left leg and the head. PW1 fell down unconscious as they were drunk accused then removed the money and ran away.”

The weapons of attack are clearly different, which they cannot be if the story of the Investigating Officer PW5 is as given by the complainant PW1. So is the amount of money withdrawn by the complainant, the Investigating Officer stating it as Ksh.4,500/- and the complainant put it at only Ksh.1000/- and alleging a further Ksh.3,500/- in his right back pocket.

[13] The cumulative effect of these inconsistencies in the evidence of the prosecution witnesses is generally to raise reasonable doubts as to the prosecution case, in addition to the specific aspects below.

Reasonable doubts

[14] DW1, the appellant herein told the court that they were both drunk and the complainant had left him giving him, as usual, his mobile phone which he gave to the complainant’s niece the following day. This conduct of the appellant is inconsistent with a person who had beaten and stolen from the owner of a mobile phone which he seeks to return. Both the appellant and the complainant agreed that they were friends, the complainant testify how he had bought drinks for the appellant. It is not inconceivable that tin his drunken stupor the complainant may have thought that the complainant had attacked and stolen from him. Indeed, the Prosecutions own witness PW4 testified that he had found the complainant injured and lying on the grass along a roadside and thought that he was drunk and he prepared a mixture of milk and sugar for him.

[15] Further, when PW2, the complainant’s niece, gave him his mobile phone which the appellant had dropped at their home, she testified that he did not react to the occurrence saying “I gave the phone to PW1 the same day he did not say anything.” This conduct on the part of the complainant is again inconsistent with that of a person who had been robbed the previous evening and his said mobile phone, which is now returned, stolen. The normal course of things is that the complainant would have raised alarm seeking the arrest of the appellant who had now been revealed as the attacker by his returning the allegedly stolen phone. The lack of such reaction from the complainant raises a doubt as to whether the appellant had stolen the mobile phone from the complainant or he had been given the phone by the complainant for safe keeping s usual as alleged by the appellant in his sworn evidence.

Gaps in the prosecution case

[16] PW4’s wife and the other woman who allegedly found the complainant after he screamed for help and were therefore the first people to see him after the alleged robbery were never called as witnesses. No explanation for this default was made by the prosecution who called the said woman’s husband as PW4 who said that on “coming from my mother’s home saw my wife running with a tent from covering maize and told me PW1 as injured and lying on the grass beside the road….” Did the prosecution fail to call her and the other woman because they are the ones, as testified by DW2, who had beaten the complainant? DW2, a neighbour to both appellant and the complainant testified that he had seen PW1 (complainant) drunk near Simeon’s (PW4) home ; that he had seen two women and a girl carrying firewood, and that the two women had beaten the complainant with sticks when “he told them he was not going to leave the girl”. The Prosecution having failed to call the crucial witnesses, the Court is entitled to presume that the testimony of the said witnesses would have been adverse to the prosecution’s case. This gives credence to the testimony of the DW2 that the complainant had been attacked by the two women, therefore creating a reasonable doubt as to the appellant’s involvement.

Conclusion

[17] The ingredients of robbery with violence under section 296 (2) of the Penal Code, in this case the theft and the use dangerous weapons, or use of personal violence by the appellant allegedly as a lone attacker, were not proved to the required standard of beyond reasonable doubt and there were numerous inconsistencies in the evidence of the prosecution witnesses, and in any event the defence witnesses raised reasonable doubts as to the involvement of the appellant in the alleged crime.

[18] Accordingly, I agree with the appellant and the DPP that the conviction by the trial court was not supported by the evidence before the trial court, and therefore find that conviction by the trial court was unsafe. The appeal has merit and the same is allowed.

[19] The sentence of life imprisonment for the offence of robbery with violence contrary to section 296 (2) of the Penal Code is in the light of the 5-judge bench Court of Appeal decision in Joseph Njuguna Mwaura & 2 Others v. Republic [2013] eKLR indefensible, and the same is unlawful.

Order

[20] For the reasons set out above, I quash the conviction of the appellant for the offence of robbery with violence contrary to section 296 (2) of the Penal Code and set aside the sentence of life imprisonment imposed on him therefor, and consequently direct that the appellant be released from custody unless he is otherwise lawfully held.

DATED AND DELIVERED THIS 14TH DAY OF SEPTEMBER 2017.

EDWARD M. MURIITHI

JUDGE

Appearances:

Appellant in person

Ms. Macharia Assistant Director of Public Prosecutions for DPP.