[2017] KEHC 10136 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CRIMINAL APPEAL NO. 49 OF 2016

BETWEEN

SAMMY OGWENO OCHARO..........................APPELLANT

AND

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

(Being an appeal from original conviction and sentence of the

PM’sCourt Mbita in criminal case No.214 of 2015 –

S.O. Ongeri, PM dated 19/11/2015)

JUDGMENT

1. The appellant (SAMMY OGWENO OCHARO) was convicted on a charge of robbery with violence contrary to Section 296 (2) Penal Code and sentenced to death.

The particulars of the charge were that on 18th November 2014 at SINDO township in SUBA district within HOMA BAY county, he jointly with another who is still at large, robbed MARTIN OKOTH of Kshs.10,000/= and immediately before or immediately after the time of such robbery wounded the said MARTIN OKOTH.

The appellant denied the charge.

2. On 18/11/2014, MARTIN OKOTH was on his way to SINDO market accompanied by his wife MARGARET KEMUNTO OWINO (PW2) at about 3. 00p.m. when as he was passing through a corridor, he met two people, and one of them held him by the neck.

3. The appellant came with a knife and said he was looking for PW1. He stabbed PW1 in the abdomen, using the knife, then took away Kshs.10,000/= which PW1 had in his chest pocket. PW2 screamed, but as members of the public gathered, the appellant waved the knife threatening to stab anyone who approached.

4. Eventually as the crowd swelled, the appellant and his colleague ran away. PW1 lost consciousness and was rushed to SINDO hospital where he was admitted for almost one month.

He explained that there was enough sunlight during the attack, and he was able to see and identity his attacker as the appellant. He stated:-

“The accused had a knife… I was attacked by two people. The person who stabbed me is there (points to accused). I used to see him in the market. He is a fisherman.”

5. MARGARET KEMUNTO OWINO (PW2) confirmed that PW1 was attacked at about 3. 00 p.m. as they were walking to the market. She was walking behind him in the corridor and stated:-

“We reached a corridor and I saw 2 people approach the corridor and stood in front of my husband. The accused then wielded a knife and stabbed my husband in the abdomen… He then removed some money from my husband’s chest pocket.”

6. She testified that appellant wielded the knife and dared anyone who was human enough to approach. She explained that she was about 10 metres away from her husband, when he was attacked and the crowd which responded to her screams stood far from him because they feared being stabbed.

She confirmed that there was enough sunlight to enable her identity the appellant whom she had seen before that incident.

7. JOSEPHAT OIGO (PW3) was preparing lunch at 3. 000p.m. within SINDO, when he heard some people screaming. He gist out and he saw a woman screaming. He also saw SAMMY OGWENO falling down and being stabbed with a knife. He rushed to his aid and helped take him to hospital. He stated:-

“When he stabbed him; he ran away and wielded the knife, threatening to stab anybody who came his way. I had seen the accused before, I assisted the old man alone … The person is there (point to accused).”

8. On cross examination, PW3 stated that he heard the noise about 50 metres from his house, and saw the appellant stabbing the victim then run away and he saw two people attacking the victim.

9. BENARD MAINA (PW4) a water vendor at SINDO was coming from the market on 18/11/2014 at about 3. 00 p.m. when he heard screams, and saw people gathering. He saw one SAMMY lying down bleeding from the stomach with the intestines hanging out. He noted that the assailant had a blood stained knife and identified him as the appellant. That was his first time to see the appellant.

10. On cross examination, PW4 clarified that he did not witness the actual stabbing but only saw the appellant with a blood stained knife, and he was threatening to kill anyone who came to save the victim. He also noticed that the appellant had money in his other hand.

11. PW1 was examined by HYDEN CHANJIMA OMWOYO (PW5) who confirmed that he was bleeding from a stab wound in the lower abdomen around the pubic region to the umbilicus, and the injury had most probably been inflicted using a sharp object. He produced the P3 form and treatment notes as Exhibit 2and3; and assessed the degree of injury as grievous harm.

12. SGT ROBERS MUTAHI (PW6) confirmed receiving a report about the incident from PW2, and he then visited PW1 who was admitted at SINDO DISTRICT hospital in a critical condition. Although the complainant was conscious, he could not talk. He noticed that the victim was bandaged on the abdomen. He recorded statements from witnesses, and eventually on 21/03/2015, officers from SINDO AP CAMP alerted him that the appellant had been apprehended, so he went there and re-arrested him.

13. The appellant in his sworn defence stated that he went fishing on 18/11/2014 in the lake and returned at 6. 00 p.m. He denied meeting PW1 on that day and only heard in the evening from two fishermen about the attack on PW1. He insisted that Maina (PW4) only mentioned him because he knew him as a fisherman.

14. On cross examination the appellant said at the time the incident allegedly took place he was fishing in the lake with JOHN and ODHIAMBO who were fishermen from KARACHUONYO. He also claimed to have differed with one of the prosecution witnesses previously, although he did not specify which witness it was.

15. The trial magistrate in his judgment found that PW1 and PW2 were able to easily identify the appellant, as he was someone known to them earlier. He observed that Pw3 and PW4 who later appeared at the scene also saw and identified the appellant as one of the assailants.

16. The trial magistrate held that the evidence was well corroborated and the alibi defence was an afterthought which the appellant had never raised during cross examination of witnesses. He was satisfied that the victim was assaulted, injured, then robbed of his money, and during the incident the appellant was in the company of another.

17. The appellant now contests these findings on grounds that the conditions and circumstances prevailing during the attack did not favour positive identification. Further that the investigation as poorly conducted and he was convicted on mere hearsay evidence. He also lamented that the trial magistrate unfairly dismissed his defence.

18. At the hearing of the appeal, the appellant relied on written submissions where he argued that the prosecution failed to prove its case to the required standard because the victim’s blood stained clothes which he wore during the attack were not produced in court. It was also his submissions that no independent witness was called to testify despite the fact that the attack took place in broad daylight.

19. He also pointed out that both PW3 and PW4 named the person they saw being attacked as SAMMY and not MARTIN OKOTH, and urged the court to find that it was very likely that there was a conspiracy to have him jailed for reasons best known to the complainant and his wife. He also submitted that his constitutional right to a fair trial was violated as he was not supplied with witness statements.

20. In opposing the appeal, MR. OLUOCH on behalf of the state submitted that the attack took place in broad daylight and the appellant was identified by witnesses who recognized him, as they had known him even before that day. He also pointed out that the evidence regarding opportunity for identification and accused of the attack was corroborated by PW2 and PW3.

21. From the evidence presented, there is no doubt that PW1 was attacked by a knife wielding individual who took away the money he had. That was consistently presented by PW1, PW2 and PW4 (who saw the attacker holding money in one hand, and a knife in the other hand).

22. Both PW1 and PW2 were categorical that the appellant was the person who staged the attack and they recognized him by his physical appearance as a fisherman they used to see in SINDO area. Indeed the appellant confirmed that he was a fisherman.

23. Yet in the evidence of PW3 & PW4 they named the person who was being attacked and whom they assisted as SAMMY, infact PW3 referred to him as SAMMY OGWENO. Actually SAMMY OGWENO is the appellant – so this begs the question as to whether PW3 and PW4 actually witnessed the attack, or they were just given a name, and they could not peg it to the victim or the attacker? The trial magistrate made no attempt to resolve this consistent anomaly. So that when PW3 and PW4 then pointed at the appellant in court as the person they saw and whom they had known ever before but gave his name to the victim, then it raises suspicion as to their credibility.

24. Yet why would PW1 and PW2 say the appellant was the attacker? It is interesting that none of the prosecution witnesses described the appellant’s manner of dress, and if they met along a corridor, and PW2 was walking behind PW1 at a distance of about 10 metres, and she kept that distance as the two men stopped and accosted PW1, what opportunity did she have to see the attacker?

25. The attack also seemed sudden – it seems the only word the attacker said was that he had been looking for PW1, then his colleague began strangling PW1 as the appellant stabbed him in the stomach.

26. Surely could she see the face of the attacker? Then her husband fell and she continued screaming as the attacker dared anyone to draw near him. Which direction was the attacker facing as he made those threats to enable her to see his face? How wide was the corridor – was it so narrow that it could only take single fit walking (which is why PW2 was walking behind PW2)? I think these loopholes were not adequately filled by the evidence presented by prosecution, and it was unsafe to sustain a conviction.

27. Consequently the conviction is quashed and sentence set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held.

Delivered and dated this 9th day of October, 2017 at Homa Bay

H.A. OMONDI

JUDGE