[2022] KEHC 2007 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEAL NO. 29 OF 2020

SAMUEL MACHARIA NJENGA..........APPELLANT

VERSUS

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

(BEING AN APPEAL FROM THE JUDGEMENT OF HON. B. LIMO

(RM) DELIVERED ON 27TH MAY 2020 IN CRIMINAL CASE NO. 941 OF 2015).

JUDGEMENT

1. The appellant with another were charged with the offence of Robbery with violence contrary to Section 296(2) of the Penal code. The particulars of the offence were that on the 26th day of April 2015 at Wanyororo B area in Nakuru North District within Nakuru County jointly with another not before court while armed with offensive weapons namely pangas and crude weapons robbed JOHN MACHARIA MWANGI one pair of leather shoe, one brief case containing assorted clothes, two mobile phones one Bird and Techno and cash Kshs. 2,500/= all valued at Kshs. 10,300/= and after or immediately before or immediately after the time of such robbery used actual violence to the said JOHN MACHARIA MWANGI.

2. The second count was also an offence of Robbery with violence contrary to Section 296(2) of the Penal code. The particulars of the offence were that on the 26th day of April 2015 at Wanyororo B area in Nakuru North District within Nakuru County jointly with another not before court while armed with offensive weapons namely pangas and crude weapons robbed JANE WAIRIMU MWANGI cash Kshs. 1,700/= and after or immediately before or immediately after the time of such robbery used actual violence to the said JANE WAIRIMU MWANGI.

3. The appellant was convicted and sentence to serve 20 years’ imprisonment hence this appeal. The appellant has raised the following amended grounds of appeal challenging the judgement;

a) THAT, the learned trial magistrate erred in law and in fact by failing to find that the charge sheet as drawn was duplicitous thus prejudicial to the appellant.

b) THAT, the learned trial magistrate erred in law and in fact by failing to appreciate that the appellant’s identification was not positive and as such cannot sustain a safe conviction.

c) THAT, the learned trial magistrate erred in law and in fact by failing to find that the prosecution case was vitiated with contradiction and as such could not corroborate the charge.

d) THAT, the learned trial magistrate erred in law and in fact by failing to consider the appellants defence yet the same was cogent and believable.

e) THAT, the sentence imposed is harsh and excessive since it 1s not informed by the unique factors circumstances of the offence.

4. Before looking at the merits or otherwise of the appeal it shall be worthwhile to summarize the evidence as presented during trial.

5. PW1 JANE WAIRIMU testified that on 26th or 27th April 2015 it was raining heavily when she heard a distress call from her son’s house which was next to hers. That she tried to exit the house but discovered it had been locked from outside so she raised an alarm and the door were opened. She testified that she saw two men and was able to recognize the accused when he flashed torch light at her and was able to recognize his voice too. That the accused was nicknamed “Magasha” and they have lived in the same neighborhood for over 3 years. PW1 testified that they demanded for money and she parted with Kshs 1700/=, though she could not tell who amongst the two took the money as she was so scared then. That accused slashed her hands using a machete and her son had been slashed on the left cheek.

6. PW1 testified further that their neighbours rushed them to Bahati hospital and later Bahati police Station where she recorded a statement and police officers visited the scene. That she was issued with a P3 form which was marked as MFI 1. That she identified the accused the following day and he was arrested by members of the public and escorted to Bahati Police station. She testified that no grudges existed between them.

7. On cross examination, PW1 confirmed that she clearly saw the accused while he was in the house, and she had known him for three years. PW1 confirmed further that she had no grudge with the accused or his father and that at the time of the incident she mentioned the accused name ‘Magasha’. PW1 confirmed to have sold changaa to the accused but she however was unable to recognize the accused’s accomplice.

8. Upon being recalled for cross examination, she testified that the thugs were wearing black jackets and had covered their faces and that they started cutting her upon entering the house while demanding for money as they made death threats. That they forcefully took Kshs. 1700 from her and the same was recovered from the accused. She testified further that she was selling changaa thus she believed that the men were police officers. She confirmed that her house was not connected to electricity.

9. Upon re-examination, PW1 testified that she was not drunk at the time of the incidence and that one of the men had a torch which he flashed around while looking for money thus she was able to view the accused face. She testified further that she told the police that she was attacked by a person she knew very well.

10. PW2 JOHN MACHARIA MWANGI, who is PW1’s son testified that on the night of 26th or 27th April 2015 he was asleep when he heard a loud bang and as he woke up a man slashed him on the left cheek. He said that he was able to identify the accused because he had a battery globe. He went on to state that he was with Kamau who took Kshs.1500/= from him. He testified further that his wife was not touched but PW1 was attacked and the neighbours came to their rescue. He was attended to at Maili Kumi Hospital and recorded statement at Bahati Police Station. He said that they came across the accused on their way home from the police station and he was arrested by the members of public. He produced the P3 which was marked as MF2. He testified that he had no grudge with the accused.

11. On cross examination, he confirmed that the accused took his clothes and shoes whereas Kamau took his money and slashed him.

12. PW3 OMAR HIRSI medical officer Bahati sub county hospital, testified by producing the p3 forms on behalf of Dr. Adagala who was then on a study leave. He testified that MFI 1 was filled in favour of PW1 who on 28th April 2015 had sustained cut wounds which were classified as harm. He testified further that MFI 2 was filled in favour of John Macharia Mwangi on 28th April 2015. That the patient had sustained a cut wound on the left cheek after being cut by thugs who he identified as his neighbours at Wanyororo B. MFI 2 was marked as exhibit 2.

13. On cross examination, he confirmed that PW1’s clothes had no blood stains and there were no signs of intoxication. He testified that at the time of examination the patients had changed clothes and no DNA conducted.

14. PW4 No 75445 PC JOHN KWENGA of Bahati police station, testified that on 27th April 2015, at about 3. 30 am, he received two complaints from John Macharia and Jane Wairimu who reported that at about 1. 00 am they were asleep when they were attacked by robbers who forcefully entered PW2’s house and slashed him on the left side of the cheek and robbed him. He testified further that on 28th April 2015 at about 12. 10 am, the accused was brought to the station by members of the public. The two complainants were able to identify the voice of the two robbers because they used to partake changaa within their homestead. He testified that identification was not visual but through voice only and that the he recovered nothing from the accused who happen to be the complainants neighbour.

15. On cross examination, he confirmed that the robbery was committed at about 1. 00 am, that identification was visual and that he never witnesses the act. He testified that they broke the doors but he never took any photos or recover the weapon used during the attack. He confirmed that they never dusted anything for fingerprints and that the accused was recognized through voice but PW1 never described the same to him though they used the names ‘Bonoko’ and ‘Magasha’

16. Upon re- examination, he testified that the victims sustained injuries and that they identified their attackers through their voice.

17. When placed on his defence the appellant gave unsworn evidence where he stated that he was from Bahati Estate and worked as a casual laborer. That as he was leaving for work at 9 am, he met PW1 and PW2 with family members and he went to stand at bus stage waiting for his colleague. He stated that he was later called to write a statement at Bahati police saying. He stated further that the complainant was his neighbour and he was arrested and his house searched but nothing was recovered. On cross examination, he stated that he knew PW1 as he was his neighbour and that they had no dispute with them. He confirmed that the complainant failed to see the attackers.

18. The court directed that the matter be disposed of by way of written submissions which the parties have complied.

Appellants Submissions

19. The appellant submitted that the charge sheet was defective since the charges were framed in duplex form. That the same read on the charge robbery with violence contrary to section 295 as read with 296(2) of the Penal Code. The appellant submitted that under section295 the charges are framed in a general definition for simple felony of robbery by a person and the same creates no punishment. That further, section 296(1) provides for a sentence of imprisonment of 14 years for such a person. On the hand section 296(2) provides for the offence of robbery with violence which is a capital offence and not a felony and whose punishment is death. The appellant submitted that there was a duplex charge and it goes to the root of his case and it cannot be cured under section 382 of the Criminal Procedure Code.

20. The appellant placed reliance on the case of Ibrahim Mathenge v Republic CR. Appeal No. 222 of the 2014where the court held that a duplex charge was fundamental breach which goes to the root of the appellant’s conviction and the sort of irregularity was not curable under section 382 of the Criminal Procedure Code.

21. The appellant submitted further that identification was not positive as PW1 and PW2 both gave contracting testimonies on how they identified the accused. The appellant submitted that the law on identification was well settled and that courts have from time to time stated that the evidence on identification must be scrutinized carefully and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. He draws this court attention to the cases of Robert Gitau Wanjiku v Republic Criminal Appeal No. 63 of 1990, Ndiso Mbuthia & Others v Republic High Court Criminal Appeal No. 360 of 1990.

22. In conclusion, the respondent submitted that the prosecution case was marred with inconsistencies and contradictions and therefore failed to prove its case beyond reasonable doubt. That further, his sentence for 20 years on each count which was to run concurrently was harsh and excessive. He urged the court to allow the appeal, quash the conviction, set aside the sentence and he be set at liberty.

Respondent Submissions

23. The counsel for the respondent opposed the appeal and submitted that the trial magistrate analyzed the ingredients for the offence of robbery with violence under section 295 of the Penal Code and ingredients of robbery. That the same were pre-supposed in the three sets of circumstances prescribed in section 296(2) of the Penal code. He submitted further that the complainant left no doubt as to the identity of the attacker who robbed them and subsequently injured them.

24. That the appellant opted to give sworn evidence and did not call any witness to support his allegations. That the evidence given linked the appellant to the offence thus there was no doubt as to who committed the offence. The respondent submitted that the complainant had no grudge with the appellant and that the alibi defence did not shake its case as the same was an afterthought. The state counsel urged the court to uphold the conviction and sentence and to dismiss the appeal as the same lacked merit.

Analysis and Determination

25. How the first appellant court should approach an appeal was discussed in the case of OKENO V. REPUBLIC [1972] EA 32. as follows:

“It is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”

26. Upon carefully considering the proceedings as well as the evidence tendered and the exhibits produced and together with the parties written submissions the following issues arise for determination by the court;

i. Whether the charge was properly framed.

ii. Whether the appellant was sufficiently identified.

iii. Whether the prosecution proved their case on the required standard of beyond reasonable doubt.

27. On the first issue, on whether the charge was properly framed, Section 134of theCriminal Procedure Code provides that a

28. Charge sheet should be drafted in such a way that; -

i. it discloses an offence known in law;

ii. offence is disclosed and stated in a clear and unambiguous manner such that the accused person pleads to a specific charge which is easily understandable so as to also enable the accused person prepare the defence; and

iii. The charge should contain all the essential ingredients of the offence.

29. In the instant case, the appellant was charged with the offence of robbery with violence, Contrary to Section 295, as read with Section 296(2),of thePenal Code, Cap 63, and Laws of Kenya. It is the appellants’ contention that the same amounted to a duplex charge. The respondent on the other hand argue that the ingredients of the offence of robbery under section 295 are pre-supposed in the three sets of circumstances prescribed in Section 296 (2) of the Penal Code.

30. The above provisions of the law provide as follow: -

Section 295 of the Penal Code defines robbery in the following terms:

‘Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.’

Section 296 (1) and (2) of the Penal Code provides: -

(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.

(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.’

31. Whereas it is true that the charges as framed indicates both sections of the Act ,did it prejudice the appellant in any way.? The Court of Appeal in Paul Katana Njuguna vs. Republic [2016] eKLR held that:

“…...In the matter before us, we are unable to detect any prejudice which the appellants suffered. The record shows that the appellants suffered no confusion when the charge, as framed, was read to him and when the witnesses testified, he fully cross-examined them. He raised no complaint before both the trial court and before the High Court. So, while it would be undesirable to charge an accused person under both sections in the alternative, it would not be prejudicial to that accused person if the offences are not framed in the alternative. As we have already noted the rule against duplicity is to enable an accused know the case has to meet. We accept as the correct position in law that uncertainty in the mind of the accused is the vice at which the rule against duplicity is aimed. If there is no risk of confusion in the mind of the accused as to the charge framed and evidence presented, a charge which may be duplex will not be found to be fatally defective.’

32. In applying the above principles to the instant case, it is clear from the proceedings that the charges were read to the accused persons on 29th April 2015 to which each of them responded in the negative “not true” for both counts and a plea of “not guilty” was entered. At no point during plea-taking did he express confusion as to the type of charges that had been read out to them. The issue of duplicity was not raised at any stage of the trial and when the appellant cross- examined witnesses for the prosecution and in his defence he never raised the issue of duplicity of charges. It is therefore my view that the charges, though duplex as illustrated in the above cited case of Joseph Njuguna Mwaura & 2 others (supra), were not fatally defective as the appellant understood the charges facing him and there was no sense of uncertainty during the trial or in the instant appeal. In view of the forgoing, this court holds that the defect in the charges was curable under Section 382 of the Criminal Procedure Code and were properly before the trial court.

33. On the second issue, whether the appellant was sufficiently identified,PW1 testified that she was able to identify the appellant who was her neighbour when he flashed torch light at her and she recognized his voice. PW2 also testified that he was able to recognize the accused person because he had a battery globe/bulb in his room. The appellant challenged the said evidence and submitted that there were inconsistencies in the evidence of PW1 who upon being recalled for cross examination where she had testified that the accused together with his accomplice had worn black jackets and had covered their faces. The appellants contend how the PW1 was able to identify him if his face was covered up.

34. The evidence of the two complainants in my view are not very contradictory. PW2 said that he was able to identify the appellant as there was a battery globe and that he had known him since 2014. PW1 on the other hand said that she saw the appellant when he was flashing the torch inside the house. She also knew him as he was her changaa customer.

35. Although the investigating officer said that the complainants identified the appellant via his voice the same is as well true as there is sufficient evidence that there was a conversation with the assailants as they attacked them and demanded money. They must have spent some considerable time with them as they were not in any hurry.

36. More importantly there was no suggestion from pw2 that the assailants had covered their faces when they attacked him. All in all, the appellant has not denied that he was not living in that area and that he did not know the complainants. The same did not come out during his defence evidence or at all.

37. These I find are people who knew each other very well and lived within the same vicinity. The issue of identification whether voice or visual was not very difficult. This line of submission was therefore not strong and I disagree with the same. In holding the above argument, the court is well aware of the decision in case of R vs Turnbull [1976]3 All ER 549at page 552 where it was held that he said: -

‘Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.’”

38. Lastly, on whether the prosecution proved their case on the required standard of beyond reasonable doubt i find that the prosecution did prove its case to the expected standards. The injuries suffered by the complainants were serious as per the medical evidence produced. They suffered serious cuts and were not able to recover their lost items.

39. In the premises I do not find any merit in the appeal and the same is hereby dismissed.

DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 3RD DAY OF MARCH 2022.

H K CHEMITEI.

JUDGE