[2019] KEHC 3045 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIVASHA

CORAM: R MWONGO, J

CRIMINAL APPEAL NO.20OF 2017

(Being an Appeal from the Original Conviction and Sentence in Criminal Case No. 1770 of 2015

in the Chief Magistrate’s Court, Naivasha, (E. Kimilu, PM)

SAMUEL MUNYIRI WAINAINA..................................................APPELLANT

VERSUS

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

JUDGMENT

Background and Facts

1. The appeal herein raises two grounds of appeal or issues upon which it is premised. The first is the question of identification and arrest on mistaken identity, and the second is whether the defence of alibi was improperly dismissed by the trial court.

2. Samuel Munyiri Wainaina was charged and convicted with two counts of robbery with violence. The charges were that on 16th May, 2014 at Rubiri area, Naivasha, jointly with others not before court, he violently robbed Isaac Muigai Karanja of a vehicle, mobile phone and licence all valued at Kshs 4,884,000/= and also robbed and killed Solomon Mwangi Wambui. He was also charged with alternative charges premised on the occurrences of 16th May 2014, in that he retained motor vehicle registration number KBN 175N Mitsubishi Lorry, the property of David Kahora Wainaina and retained the mobile phone of the late Solomon Mwangi Wambui.

3. The role of the court in a first appeal was stated by the Eastern African Court of Appeal as being to reconsider the evidence availed in the trial court. The Court stated that the trial court:

“has a duty to rehear the case and reconsider the witnesses before the judge or magistrate with such other material as it may have decided to admit. The appellate court must them make up its own mind disregarding the judgment appealed from but carefully weighting and considering it.” See Pandya v. Republic [1957] EA 336.

In so doing the appellate court must take into account that it did not see the witnesses and observe their demeanour. With this guidance, I proceed to consider the appeal.

4. The facts of the case are that PW2, Isaac Muigai was the driver of lorry number KBN 175N belonging to PW1 David Kahora Wainaina. He had gone to load sand when he heard someone call him. On going to the man, he found out that he wanted sand delivered to High Peak area. They exchanged telephone numbers. The next day, 16th May 2014, as he was delivering the sand he had loaded the previous day, he received a call from an unidentified number. The caller introduced himself as the person he met the previous day. They agreed that the caller would send a man he described to show him where to deliver this new order.

5. PW2 agreed to deliver the new order after he had told PW1 who approved the order. After loading the sand PW1 and the turnboy Solomon Mwangi Wambui (deceased) met the man sent by the customer. It was daytime. The man boarded their lorry and showed them a site where they met 3 people including the accused, standing next to a saloon vehicle.

6. The customer asked PW2 to accompany him to the car to receive payment and he obliged. He was given Kshs 20,000/=. Just then, another person came to the car. Suddenly things turned and the people grabbed PW1’s phone, keys driving licence and Kshs 28,000/=. The assailants also brought his turnboy to the lorry. One of the thugs had a gun, the other a knife. They took a mix of water with some tablets which they forced PW1 to drink. PW1 was blindfolded. He drunk the mix and feigned drunkenness but could still hear what they were planning. The turnboy resisted the drink and was beaten by the thugs, among them the accused.

7. PW1 was thrown out of the vehicle and the assailants drove off with the lorry. PW1 staggered off and met some masons to whom he explained what had happened. Then he fell unconscious. He later found himself at Naivasha District Hospital. His turn boy succumbed to the injuries and died.

8. PW1 David Kahora Wainaina was the owner of the lorry. On 16th May, 2014 he had agreed to his driver making a delivery of sand to High Peak Area. After some hours, he called the driver, PW2, who was not picking his phone. At about 2. 00pm whilst he was having lunch he received a call from a person who said he was the Chief of Mirera Location. The Chief told him that his driver had been drugged and carjacked.

9. PW1 immediately called the vehicle tracking company, and then reported the incident at Naivasha Police Station. He also went to Naivasha District Hospital where the driver and loader had been taken in critical condition. Meanwhile, the vehicle was tracked as it was heading to Mau Narok. The police, having been informed, sought assistance from their Nakuru colleagues.

10. On getting to Nakuru Police Station, they found three people had been arrested including the accused. This was after the police intercepted the lorry with two occupants and the driver.

11. PW2 later attended an identification parade and picked out their attackers. The accused was one of them and PW2 clearly pointed him out.

12. PW3 Chief Inspector Nzioka Singi gave evidence that he was in charge of the Police Flying Squad in Naivasha. The Investigating Officer had on 15th May, 2014 requested him to conduct an identification parade. He explained how he conducted the parade, and produced P. Exhibit 6, the Identification Parade Form. He stated that he placed the complainant behind the Flying Squad office and the parade members were in the corridor near the police cells. He detailed the conduct of the identification parade as provided in the Parade Form.

13. PC Satrine Ouma was the Investigating Officer and gave evidence as PW4. He testified that he had worked with the Flying Squad at Nakuru for four years. He testified that the inspector in charge gave him and his colleague information that a lorry KBN 175N Mitsubishi had been robbed and was headed to Njoro via Nakuru Narok road. They rushed to intercept the lorry, and spotted it at Mauche area. They gave chase and intercepted it at a road block. Three male occupants of the lorry were ordered out at a gun point - the driver David Mwangi Mungai, Samuel Wainaina and Benson Wachira Thairu. They searched the men and recorded: a driving licence PMFI 8, National Identity Card No. 27994909, Kshs 100 in a wallet, a wallet and two mobile phones Samsung Duo and Samsung Char.

14. PW5, Nelson Kanyingi identified the body of his nephew Solomon Mwangi Wambui, to pave way for a post mortem to be conducted.

15. PW6 Sergeant David Makau attached to CID Nakuru North was instructed by the Officer-in-Charge Nakuru Flying Squad to attend to the scene where a hijacked lorry had been intercepted. He went there and took over the matter. The deceased’s phone make Itel - P. Exhibit 12 - was found in the lorry. All the items found were recorded in an inventory produced as P. Exhibit 13. PW6 also went to Nairobi to the car track company that had traced the lorry KBN 175N, and they gave him a print out of how the lorry was moving on the material day.

16. PW6 finally testified that during the hearing, the accused persons absconded and one was gunned down in Nairobi. The appellant was re-arrested a year later and that is why he was alone in court. The court subsequently found that the other accused, Benson Wachira Thairu was tried separately in Naivasha Criminal Case Number 963 of 2014. PW4 and PW6 identified the accused in the dock as one of the three accused persons they had arrested in the lorry and subsequently charged, before the accused absconded and was re-arrested.

17. I now turn to the issues under appeal.

Identification

18. The appellant alleges that identification parade rules were not followed, and that the learned Magistrate failed to note that the appellant’s arrest was based on mistaken identity. He argues that the identification was not free from possibilities of error as there was a sole identifying witness.

19. The evidence concerning identification was fully set out in the testimony of Chief Inspector Nzioka Singi PW3. He produced the Identification Parade Form as Exhibit 6. The form shows that Inspector Singi was in charge of the parade. It indicates that the suspect Samuel Munyiri Wainaina, was asked if he consents to appear on the parade. He consented and signed. The appellant was asked if he had a friend or solicitor desirous of being present and said he did not have any. Again, he signed the forms. The form shows that there were eight members of the parade.

20. The Kenya Police Force Standing Orders Paragraph 6 on Identification Parades provides as follows:

“6 (iv) ……..

(d) the accused person will be placed among at least eight persons as far as possible of similar age, height general appearance and class of life as himself.

(i) ensure that the witness actually touches the person he identifies.”

Section D of the Form shows the list of members of the parade. There are eigh names that appear on the list.

Section E of the Parade Form shows the results of the parade as follows:

That Witness No. 1 (PW2) identified the suspect in the following manner:

“The suspect was positively identified by touching” [he was in the position] “between 3 and 4 on the Parade.”

21. In David Mwita Wanja & 2 Others v. R. Criminal Appeal No. 117 of 2005, the Court of Appeal had the following to say on identification parades:

“The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying that officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA 29. There are a myriad other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia v Republic [1986] KLR 422 where the court stated at page 424: -

“It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.”

22. Applying the principles from the above authority herein, I am of the view that the appellant was properly identified, and a proper record was made with full involvement of the appellant. Further, I am satisfied that PW2, who had spent some considerable time in broad daylight with the accused during the transactions involving delivery of the sand, was in a good position to identify his assailants.

The Alibi

23. The appellant gave evidence in the lower court as DW1, by way of an unsworn statement with no witness. He stated that on 16th May 2014 he was at Mauche Bus Stage waiting for a motor vehicle when he heard gunshots and saw people running. He too ran away and was arrested at Mauche road block. He was handed over to the Flying Squad officer, and was brought to Nakuru. Thereafter he was ferried to Naivasha Police Station. On 18th May, 2014 an identification parade was conducted and he was picked out and subsequently arraigned in court.

24. I have considered the alibi. It amounts to a weak attempt to place himself at the Mauche road block where he was arrested but under circumstances not connected to the intercepted lorry. It appears to me to be an afterthought.

25. For an alibi to have true value, it must be credible and be able to relate a story that truly pokes holes in the evidence of the prosecution and raises a reasonable doubt in the mind of the court. Here, the evidence was that the accused/appellant was arrested as one of the occupants of a stolen or hijacked lorry. Several arresting officers testified that he was in the lorry. The complainant, PW2, identified him at a parade as one of his assailants.

26. In Kiarie v. Republic [1984] KLR the Court of Appeal held that:

“An alibi raises a specific defence and an accused person who puts forward an alibi answer to a charge 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. The judge had erred in accepting the trial magistrate’s finding on the alibi because the finding was not supported by any reasons.”

27. I find that the alibi raised here was not even broached during the cross examination of any of the prosecution witnesses, and I consider it to be an afterthought.

28. All in all, I find that the trial magistrate properly convicted the appellant and there is no basis to disturb the conviction and sentence which is hereby upheld. The appeal is therefore dismissed.

29. Orders accordingly.

Dated and Delivered at Naivasha this 15th Day of October, 2019.

RICHARD MWONGO

JUDGE

Delivered in the presence of:

1. Maingi for the State

2. Samuel Munyiri Wainaina - Appellant in person

3. Court Clerk - Quinter Ogutu