[2004] KEHC 801 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO. 204 OF 2002

FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NO. 3432 OF 2000 OF THE CHIEF MAGISTRATE’S COURT AT THIKA

SAMUEL KAMAU KUNGU……………………………………………APPELLANT

VERSUS

REPUBLIC…………………..………………….………….…………..RESPONDENT

JUDGEMENT

The appellant, SAMUEL KAMAU KUNGU was convicted for ROBBERY WITH VIOLENCE contrary to section 296(2) of the Penal Code, and he was then sentenced to death, as that is the only sentence prescribed for that offence. The appellant was a neighbour to the complainant. His home was said to be about 500 metres from that of the complainant.

It was the prosecution case that on 2nd July 2000, the appellant was in a gang of between six and eight people who went to the complainant’s home, with the intention of robbing him of money.The robbers were well aware that the complainant had a shop and bar at the local shopping centre, which was about 3 to 4 kilometers from his home. The target of the robbers was to get the proceeds of sale from the two businesses. But as luck would have it, the complainant only had Kshs 400/= on himself. He had not collected the proceeds of sale from his businesses. Therefore, the robbers bundled the complainant into his pick up, and drove off with him, intending to get the money from the 2 businesses. However, an alarm was raised and by the time the robbers got to the shopping centre, they had to abandon the complainant in his vehicle, and they made good their escape.

At the time of the robbery at the complainant’s home, PW1, Maina Mwaura, did not see the appellant. Mr. Mwaura was the complainant. His wife, Margaret Kigio (PW3) also did not see the appellant at the scene of crime. However, two of the complainant’s children, Teresia Wambui Maina and Peter Karara Maina testified that they did recognise the appellant as one of the robbers. Teresia (PW2) was 13 years old, whilst Peter (PW4) was a 12 years old pupil in class 5. Before venturing into the submissions, we deem it prudent to first restate part of the evidence. According to PW1, he got back home just before 8. 00p.m. on the material night.

He was somewhat unwell and therefore went straight to his bedroom, after asking his wife to get him some warm water. Shortly thereafter, his wife (PW3) was back at the bedroom door. Behind her was a stranger. PW1 grabbed the knife-wielding stranger, but his wife pleaded with him not to cause bloodshed, as there were many other robbers in the house, some armed with guns. PW3 had seen the robbers when she was leaving the main house, to go to the kitchen, which is a separate unit, completely detached from the main house. The robber who had been behind PW3, knifed PW1 on his back, when the latter had let go of him. The robbers then demanded money from PW1. But after giving them shs 400/= from his pockets, PW1 told them that the rest of the money was at the shopping centre. Meanwhile, both PW2 and PW4 testified that they knew the appellant very well.

They had both seen him earlier on the material day, at about 10. 00a.m., when they were washing clothes, at a river, which runs through their father’s land. It was common ground that there was no public path at that place, where the two children saw the appellant.

At 6. 00p.m. both PW2 and PW4 were sent off to the shops by a neighbour, PW5. However, when they reached a neigbour’s shamba, they saw 8 people in there. The children ran back to PW5’s home, and notified PW5 about the presence of strangers. Later, when PW5 testified, she verified the evidence of PW2 and PW4, in that regard.

At about 8. 30 PW2 was outside their kitchen, when she saw some people, within their compound.She testified that she recognised the appellant as one of the robbers, who then ordered her (PW2) into the Kitchen. According to PW2, the appellant was then left guarding the kitchen, while the other robbers entered the main house. Along with PW2, the other people who were in the kitchen were PW4 and another lady.

PW2 testified that she identified the appellant as there was light., The said light was from a lamp, which was then switched off by the appellant.

On his part, PW4 testified that he first identified the appellant by his voice. Later, he saw the appellant and was able to identify him, from the light of the tin lamp. Both PW2 and PW4 testified that before the robbers drove off in their father’s pick up, the people inside the kitchen were herded into the main house, which was then locked from outside.

However, PW4 managed to slip away, and he alerted the neighbours. The neighbours then raised an alarm, and even tried to stop the vehicle from getting away, by stoning it. Eventually, some other neighbours blocked the road, near the shopping centre, by placing rocks on it. That is what forced the robbers to abandon the vehicle, without gaining entry into the complainant’s shop or bar.

The first issue that the appellant was has raised in his appeal is in relation to the evidence of children. Both PW2 and PW4 were persons below the age of 18. PW2 was said to be 13 years old at the time he testified in court. Whilst PW4 was 12 years old. In the light of their ages, the appellant contends that the court could only convict him properly if their evidence was corroborated by the evidence of adults.

Mr. Mbugua, advocate for the appellant submitted that the evidence of PW2 and PW4 ought not to have been admitted by the trial court. In that regard, the appellant places reliance on S. 124 of the Evidence Act, which stipulates as follows;

“Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act, where the evidence of a child of tender years is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.”

The law is clear on this issue. An accused cannot be convicted on the evidence of a child of tender years, if such evidence is not corroborated by other material evidence, implicating the accused. Meanwhile, section 189(1) of the Oaths and Statutory Declarations Act (Cap 15) spells out the procedure to be adopted by a court, when it is handling a child of tender years, who is a witness before the court. The said section reads as follows;

“wherein, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, this evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of the speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced in accordance with section 233 of the Criminal Procedure Code, shall be deemed to be a deposition within the meaning of that section.

From the record of the proceedings, it is clear that the learned trial magistrate did comply with the provisions of section 19 of the Oaths and Statutory Declarations Act. She ascertained that both PW2 and PW4 appreciated the values and essence of telling the truth. It is only after so doing that the court had the witnesses sworn. Therefore, the trial court cannot be faulted in that regard.

However, the appellant says that the evidence of the 2 young persons should not have been admitted, for lack of corroboration.

As far as we understand the law on corroboration, there is no limitation or qualification for the person or persons who may corroborate the evidence of another witness. We are therefore unable to accept the appellant’s contention that the evidence of PW2 and PW4 had to be corroborated by the testimony of other adult witnesses.To our minds, the evidence of one young person may well be corroborated by evidence of another young person. Thus the evidence of PW4 could very well corroborate that of PW2, even though both the witnesses were below the age of 18.

Next, the appellant submitted that the learned trial Magistrate erred by rejecting his alibi defence. The record shows that the appellant testified that he was at his home, at the time when the offence was committed. He says that he only rushed to the complainant’s home after an alarm had been raised. In effect, the appellant contends that he was not at the locus in quo at the time the offence was committed. That is an alibi

. In KIARIE V REPUBLIC [1984] KLR 739 at 745, the Court of Appeal held as follows:

“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer, and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.”

In this case, the learned trial Magistrate stated as follows, when dealing with the appellant’s defence;

“I dismiss the defence tendered by accused person that he was asleep when he heard the shouts for held as an afterthought the accused person who was known to both PW4 and PW2 was clearly identified by them and there is no error.”

To our minds, the reason given by the trial court, for dismissing the defence is not good enough. The learned trial magistrate failed to say why she concluded that the defence was an afterthought. If an alibi defence is rejected for undisclosed reasons, that is a grave omission. In this case the reason was given, as being an afterthought, but it was not explained by the trial court.

As a first appellate court, we are obliged to re-evaluate the evidence. In doing so, we note that whereas the appellant does not have any obligation to prove his alibi, in this case, the appellant made a choice to adduce evidence. He called Joshua Kihogo as a defence witness. Kihogo (DW2) said that he was a brother to the appellant. He said that (PW4) he went to the complainant’s house alone. He denied having been with the appellant. Whereas the appellant was not obliged to prove his alibi, if his witness actually denies him, that puts a dent into the appellant’s defence. But that alone does not destroy the defence, as DW2 did not place the appellant at the scene of crime, at the time the offence was committed.

What then do we look at, to make further progress in our analysis? The answer lies in a re-evaluation of the evidence on record. It is clear that both PW2 and PW4 both knew the appellant very well. Therefore, when they saw the appellant at the scene, it was a question of recognition. Both witnesses emphasized that there was sufficient light to enable them recognise the appellant. Could the 2 witnesses have been honest yet mistaken? The learned trial Magistrate held that there was no error at all in the identification of the appellant. On our part, we note that according to PW2, the appellant was wearing a white overcoat and a sweater. She also testified that it was the appellant who was left guarding the people in the kitchen, while the other robbers were at the main house. On the other hand, PW4 insisted that the appellant was wearing a black coat. He said that if PW2 had seen a white coat, he would be surprised. PW4 also said that the appellant left someone else to guard the kitchen.

To our minds, black is as distinct from white, as night is to day. However, PW2 who saw the same person as PW4 did, saw the appellant wearing white, while PW4 saw him dressed in a black coat. Surely, they cannot have seen the same person. Then also, PW2 saw the appellant guarding the kitchen, but PW4 said that the appellant left his colleague guarding the kitchen. Both versions cannot be accurate. Therefore, although the evidence of one young person can be corroborated by the evidence of another young person, when the two persons give evidence that is not consistent, they cannot corroborate each other. Secondly, once there are some discrepancies between the evidence of the only two identifying witnesses, (who are both young persons), there would be no legal basis upon which a conviction can be founded.

Before we move away from this issue of an alibi defence, we feel obliged to make one further comment. It arises from the finding by the trial court that the appellant’s defence was an afterthought. We believe that that comment may have been intended to refer to the fact that the line of cross-examination adopted by the appellant did not suggest his defence at all. Perhaps, the fact that the defence did not become apparent until the appellant was put on his defence is the reason why the trial court perceived it to be an afterthought.

In WANGOMBE V THE REPUBLIC [1980] KLR 149, the Court of Appeal held as follows:

“ When an accused raises an alibi as an answer to a charge made against him he assumes no burden of proof and the burden of proving his guilt remains on the prosecution. Even if the alibi is raised for the first time in an unsworn statement at his trial, the prosecution (or police) ought to test the alibi wherever possible; but different considerations may then arise as regards checking and testing it, and it is sufficient for the trial court to weigh the alibi against the evidence of the prosecution.”

When we apply the foregoing test to this case, we find that although the defence was first raised in the appellant’s unsworn defence, the same could possibly be true. In the circumstances, the alibi raises some doubt in the prosecution case, especially when we take into account the discrepancies between PW2 and PW4. That fact alone is sufficient to dispose of this appeal.

Meanwhile, the appellant also drew our attention to another discrepancy. PW2 is said to have testified that at 6. 00p.m. she saw about 8 people in the neighbour’s plantation. But PW4 referred to the place, where the 8 people were, as a shamba. A look at the record reveals that PW2 said:

“on 2. 7.2000 at 6. 00p.m. 1, Karaba my younger brother had been sent by our neighbour to the shops. On reaching a neighbour’s shamba i.e Githaiga’s home we saw about eight people in the plantation.”

Thereafter, when PW4 was giving evidence, he said

; “At about 6. 00p.m. I was sent to the shop to buy tea leaves with my sister Teresia and a neighbour’s child called Ruth Njeri. We saw people in a garden and we returned.”

In our understanding of the evidence above, there is no material discrepancy between the words “Shamba”, “Plaintifation” and “garden”. PW2 used the word shamba interchangeably with plantation, in the same sentence, and in reference to the same thing. On his part PW4 described the place as a “garden”. The discrepancy is minor, and is really an non-issue. Nothing turns on it. In conclusion, it is important to point out that the only evidence which linked the appellant to the offence was that of his recognition by PW2 and PW4. Other than that, the appellant was not in possession of any stolen items, or any of the weapons allegedly used in the commission of the offence.

In REX V SHABANI BIN DONALD (1940) EACA 60, it was held that where the evidence relied upon to implicate an accused person is entirely of identification that evidence should be watertight to justify a conviction. The evidence of identification in this case was not water tight. Therefore, it would be unsafe to sustain conviction founded upon it. For those reasons, we find merit in this appeal. It is therefore allowed; we quash conviction and set aside the sentence.

We direct that the appellant be set at liberty unless he is otherwise lawfully held.

Dated at Nairobi this 16th day of November 2004

J. LESITT

JUDGE

FRED A. OCHIENG

AG. JUDGE

Mr. Mbogua for appellant

Wambui/Muya Court clerks