[2014] KEHC 7276 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL APPEAL NO. 212 OF 2012

(An appeal from the Judgment of Hon. M. I. G.MORANGA, PM delivered on 7th September, 2012 in the Chief Magistrate’s Court at Kakamega in Criminal Case No. 974 of 2011)

SAID AWADHI MUBARAK ……………..................... APPELLANT

VERSUS

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

JUDGMENT

The appellant was charged before the subordinate court with three main counts and an alternative charge. In count I, he was charged with robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on 25th May 2011 at Ivono village, Ilesi Location in Kakamega East District jointly with others not before court while armed with dangerous weapons namely pangas and rungus robbed Anita Lumale of Kshs.200/=, two mobile phones make Nokia 1280, one DVD make Sonny, one radio cassette Sonny, one torch, one knife, one sheet, a pair of shoes and one male coat with KPLC identity card, ATM card for Co-operative Bank and a loud speaker all valued at Kshs.15,200/= and immediately before the said robbery wounded and beat Jacinta Anita Lumale. In count II, he charged with grievous harm contrary to section 234 of the Penal Code. The particulars of the offence were that on the same day and place, jointly with others not before the court unlawfully did grievous harm to Jacinta Anita Lumale. In count 3, he was charged with shop breaking and stealing contrary to Section 306 (a) of the Penal Code. The particulars of the offence were that on the night of 25th/26th May 2011 at Shivagala trading centre, Surumba Location in Kakamega South District jointly with others not before the court broke and entered a building namely a shop of Emmanuel Achek and committed therein a felony namely theft of shop goods as per charge sheet valued at Kshs.80,000/=. In the alternative, he was charged with handling stolen goods contrary to Section 322 (2) of the Penal Code. The particulars of the offence were that on 26th May 2011 at Ilesi bus stop, Ilesi Sub-location in Kakamega East District otherwise than in the course of stealing, dishonestly retained goods which were listed in the charge sheet.

He denied all the charges. After a full trial, he was convicted on the offence of robbery with violence, and causing grievous harm. He was acquitted of the offence of shop breaking and stealing, and the alternative charge of handling stolen goods. He was sentenced to suffer death on the robbery with violence charge and also to serve 4 years imprisonment for the offence of grievous harm, which sentence was suspended because of the death sentence in count I.

Being dissatisfied with the decision of the trial court, he has now appealed to this court against both conviction and sentence. His grounds of appeal are 7 as follows -

That the trial magistrate erred in law and fact when she pronounced a harsh, inhuman and demeaning sentence.

The trial magistrate erred when she admitted the charge sheet without an Identification Parade.

The trial magistrate erred when she applied Section 296 (2) of the Penal Code when the actual case would have been burglary and stealing and/or handling stolen property.

The trial magistrate erred in law and facts when she assisted the prosecution in buying time to adduce exhibits that were manipulated.

The trial magistrate erred in law and facts when she relied blindly on testimony of alleged identification.

The trial magistrate erred in law and facts when she believed prosecution witness No. 7 who was not honest.

That the whole proceedings were marred with serious loopholes and discrepancies.

The appellant also filed written submissions which we have perused.

The learned Prosecuting Counsel Ms Opiyo, opposed the appeal and supported both conviction and sentence. Counsel submitted that there was no error on the face of the record. In counsel's view, the appellant was clearly identified by the complainant PW1. PW2 also saw the appellant. This also applied to PW6.

In response to the Prosecuting Counsel's submissions, the appellant stated that no identification parade was conducted. He also submitted that the Administration Police Officer who arrested him did not come to court to testify.

The prosecution evidence in brief is that on 25th June 2011, at around 10. 00 p.m. PW1 Jacinta Anita Lumara was in her home with her children, PW2, PW3 and PW4. Suddenly, some people appeared and demanded that the door be opened. PW1 told her children to scream, which they did. The intruders were not discouraged however. They used a huge stone and broke the door. They came into the house and the appellant demanded for money. PW1 claimed to have seen he appellant through the light while he was outside the window. She also claimed to have seen the appellant clearly when he was cutting her fingers. PW2, 3 and 4 also claimed to have seen the appellant. The intruders took several items from the house and escaped. This was the subject of counts 1 and 2. During that same night also, a nearby shop was broken into and several items stolen. There was nobody at the shop then. This was the subject of count III and the alternative charge.

The appellant was arrested later by the members of the public. He was found with some of the stolen items. He was handed over to Administration Police Officers who took him to the police and was later charged with the offences.

When put on his defence, the appellant gave sworn testimony. He denied the offences.

After evaluating the evidence on record, the learned trial magistrate convicted the appellant as stated earlier in this judgment and accordingly sentenced him. There from arose this appeal.

This being a first appeal, we are duty bound to re-evaluate all the evidence on record and come to our own conclusions and inferences. See the case of Okeno vs Republic [1972] EA 32.

The learned magistrate found that possession of the items by the appellant was not proved and therefore acquitted the appellant on count III and the alternative charge, as there was no eye witness to the breaking of the shop.

The conviction of the appellant on count I and II was therefore based on his identification at the scene as one of the assailants. Visual identification can be a basis for finding a conviction in a criminal case. However, the circumstances of the identification have to be critically evaluated by the trial court before a conviction can be found on the same.

An accused person should not be convicted in a criminal case on evidence of identification which could be mistaken. The court must be satisfied that the identification relied upon is free from the possibility or an error. The court must also warn itself before finding a conviction on evidence of identification which the defence alleges to be mistaken. See the case of Nzaro -vs- Republic [1970] KLR 70.

In the present case, the conditions for identification were difficult. It was at night. There was no evidence that there was light in the house of PW1. Though PW1 stated that she identified the appellant on seeing him through the window, there is no evidence on record regarding the source of light and its nature. All the witnesses at the scene of robbery did not give any description of the source and nature of light. There was no evidence that the appellant was positively identified at the house of PW1, by any of the present that is PW1, PW2, PW3 and PW4.

The appellant was arrested in the absence of the eye witnesses. It was therefore imperative to conduct an Identification Parade to determine whether, indeed the appellant was the person whom the eye witnesses identified as having participated in the robbery. That was not done. What remains of the evidence of identification is therefore dock identification. Dock identification alone, cannot be relied upon to find a conviction in a criminal case.

Secondly, very crucial witnesses were not called by the prosecution to testify in this case. These were the people who arrested the appellant. These crucial witnesses would have explained the circumstances and reasons for the arrest of the appellant. Since they were not called to testify, we do not know the circumstances and reasons for the arrest of the appellant. In the case of Bukenya -vs- Uganda [1972] EA 549, the Court of Appeal held that a failure to call crucial witnesses by the prosecution entitles the court to make an adverse conclusion against the prosecution case, and acquit the accused person. In our view, the failure by the prosecution to call crucial witnesses herein weakened their case to an extent that they failed to prove the case against the appellant beyond reasonable doubt as required in criminal cases. The gap created by the failure of the prosecution to call important witnesses is a doubt whose benefit we must give to the appellant, which we hereby do.

Having evaluated all the evidence on record afresh, we come to the conclusion that the conviction herein was unsafe. The Prosecution did not prove its case against the appellant beyond reasonable doubt. The appeal has merits. We allow the appeal, quash the convictions and set aside the sentences imposed. We order that the appellant is set at liberty forthwith unless otherwise lawfully held.

Dated, signed and delivered this 29th day of January, 2014

SAID J. CHITEMBWEGEORGE DULU

JUDGE JUDGE