[2020] KEHC 505 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CORAM: HON. R. MWONGO, J.

CRIMINAL APPEAL NO. 37 OF 2019

SAMUEL NDUNGU KAMAU...................................................................APPELLANT

VERSUS

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

(Being an Appeal against the Conviction and sentence of Hon. K. Bidali (CM) in Naivasha CMCR No. 640 of 2016 delivered on 5th November, 2019)

JUDGMENT

1. The appellant’s appeal herein is premised on the following grounds:

1) That the learned trial magistrate erred in law and facts by awarding maximum mandatory sentence that deprives fair trial guaranteed.

2) That the learned trial magistrate erred in law by awarding a conviction and sentence on circumstantial evidence which was not supported by any prosecution evidence.

3) That the learned trial magistrate erred in law by awarding the appellants conviction without knowing that this arrest was out of suspicion.

4) That, the learned trial magistrate erred in law by not considering my defence.

2. The particulars are that appellant and one Thomas Njoroge Njoki were charged with robbery with violence contrary to Section 296 (2) of the Penal code. The particulars are that on the night of 5th and 6th April 2016, along Maai Mahiu Naivasha Highway at Chechnia area, jointly with others not before the court, while armed with dangerous weapons including knives and rungus, they violently robbed Richard Kiplangat Koech of a lorry registration number KBT 583L. The lorry was loaded with 2500 kilograms of polythene rolls, 65 sacks of 50 kilograms roofing nails, 210 bundles of PVC all valued at Kshs 3. 3 million the property of Atul Karia. As a result of the violence meted on him, Richard Kiplangat Koech suffered death.

3. The 1st Accused was acquitted on the grounds that the evidence availed did not pass the circumstantial evidence test and there were doubt as to his involvement in the crime. The Appellant was convicted and sentenced to death.

4. The DPP conceded grounds 2, 3 and 4 of the appeal leaving ground 1, on the application of the mandatory nature of the sentence, at the court’s discretion.

5. The appellant argued that the arrest and subsequent conviction were based purely on suspicion.

6. The brief facts as they relate to the appellant are as follows. PW1, Peter Gitau Gitonga was a driver. On 5th April, 2016 he received a call from Ndungu (the appellant) on telephone 0716 260 220. He wanted a vehicle. He was not able to confirm availability of a vehicle.

7. On 18th April, 2017 the appellant called him again and told him police were searching for him. The police came for him. He was told someone had been killed near their stage. He told the police he had not carried goods that night on a lorry.

8. PW2 Joseph Makimei said he was called by the appellant on 5th April, 2016, who wanted a vehicle to carry goods. PW2 told the appellant to call PW1 who usually had access to several vehicles. On 6th April, 2016 he was told that a lorry had been traced, and the police had taken it. Two weeks late, the police called him to record a statement regarding the earlier call he had had with the appellant. The appellant was thereafter arrested as a suspect of the robbery.

9. PW3 PC Charles Kiarie attached to CID Flying Squad Naivasha testified concerning the robbery on 5th April, 2016 where a driver, later identified as Richard Kiplangat Koech, was robbed of a lorry KBT 583L Mercedes and killed. The body was dumped near Chechnia area.

10. He testified that they got information on 16th April, 2016 that:

“there were people who were suspected to be involved……We managed to arrest three suspects- Peter Gitau alias Ras, Thomas Njoroge and Samuel Ndungu (appellant)…...Samuel Ndungu tried to escape…… Another suspect managed to escape.”

11. PC Kiarie said they interrogated appellant on the calls he had made requesting for a vehicle. Printouts from Safaricom showed that the appellant had called Peter Gitau and Njehu constantly. The location they were at during the calls was near the scene of the incident. In cross examination he admitted that many people were at the scene; but said that the police were investigating only specific telephone numbers.

12. PW4 Atul Karia testified that the vehicle that was attacked was his and had carried his goods. PW5 Alexander Cheruiyot Koo identified the body of his brother, the deceased, at the mortuary for purposes of post mortem.

13. PW6 Dr. Titus Ngulungu performed the post mortem. He said the cause of death was severe chest injury of the lungs leading to massive blood loss as a result of multiple stab wounds to the chest.

14. PW7 Corporal Johnson Mboi Wambua investigated the case. He said they went to the scene, found the lorry in a feeder road and the deceased’s body on the roadside. They arrested the accused person, took their phones for analysis and availed the call data, and details of all the accused persons from the Registrar of Persons.

15. The basis for the arrest of the appellant was that there were telephone communications he had made around the time of the incident. The calls were captured within a mast area covering the area where the incident occurred.

16. PW8 Veronica Zinani Kimonyi from the Registrar of Persons office gave evidence that she availed the registration particulars of the accused person.

17. PW9 Daniel Khamisi, Security Officer with Safaricom confirmed the authenticity of the telephone data analysis reports. He highlighted the areas within which the call data was being captured by masts.

18. The appellant’s defence was via an unsworn statement. He said he had left work at 5. 00pm on 19th April, 2016, and went to the stage, where he was arrested. Prior to that, on 5th April, 2016, he had made calls looking for a vehicle to take his neighbour’s pregnant wife to hospital as she had emergency labour. He was unable to get a vehicle. Subsequently, his neighbour’s wife gave birth, and since they had relocated, he could not trace them.

19. The trial Magistrate after considering the above evidence and relying on Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic stated:

“Having gone through the evidence, I am left with no doubt that the circumstantial evidence points unerringly to the 2nd accused as having looked for a lorry on the night of the incident and whose movements on the material night were consistent to the movements of the lorry. He clearly was at the scene of the incident. There is no explanation why he needed a commercial vehicle at midnight. The only reasonable inference is that he needed the commercial vehicle to ferry away goods stolen from the deceased. I have tested each and every link in the chain of circumstances for steadfastness, there is no escape for the 2nd accused from the inevitable conclusions that he was culpable in the commission of the offence.”

20. The DPP submits that the prosecution evidence did not meet the required degree of proof set out in Sawe, particularly the fact that circumstantial evidence should be incapable of any other reasonable explanation. In the present case the appellant had lived within Karagita; and admitted making the calls, but was nevertheless arrested on the basis of suspicion; indeed many people were stated to have been arrested.

21. In my own assessment, there are too many lacunae in the evidence to sustain a conviction on a beyond reasonable doubt basis. Other than the fact of the telephone calls between the two accused and PW1 and others not before the court, having been made on the same night and generally in the telephone mast coverage also covering the incident, there is nothing else other than suspicion to have warranted the arrest of the appellant.

22. The trial magistrate in his conclusion said he had “tested every link in the chain of circumstances for steadfastness.” However, he does not disclose any of the links he tested to justify the conviction on the basis of those tests.

23. In Republic v Kipkering Arap Koske & Another 16 EACA 135 it was held that:

“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

24. As far as the evidence adduced goes, even the police stated that the appellant was arrested on mere suspicion. I do not see from the tendered evidence any material that actually so points to or infers the guilt of the appellant that exculpatory facts cannot redeem.

25. Even where circumstantial evidence must be relied upon, the essential ingredients of the offence for which the accused is charged in Section 296 (2) of the Penal Code must be proved. Here, it was incumbent on the prosecution to prove that the accused was armed with a dangerous weapon; that he was in the company of one or more other people; and that he threatened or used violence on the victim robbed. None of these can be positively asserted in respect of the appellant from the evidence adduced.

26. Ultimately, I agree with the DPP that it was unsafe to convict the appellant on the basis of the evidence adduced.

27. Accordingly, the appeal succeeds in its entirety and the conviction and sentence are hereby set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held.

Administrative directions

28. Due to the current inhibitions on movement nationally, and in keeping with social distancing requirements decreed by the state due to the Corona-virus pandemic, this Judgment has been rendered through Teams tele-conference with the consent of the parties noted hereunder, who were also able to participate in the conference. Accordingly, a signed copy of this judgment shall be scanned and availed to the parties and relevant authorities as evidence of the delivery thereof, with the High Court seal duly affixed thereon by the Executive Officer, Naivasha.

29. A printout of the parties’ written consent to the delivery of this judgment shall be retained as part of the record of the Court.

30. Orders accordingly.

Dated and Delivered in Naivasha by teleconference this 10th Day of December, 2020.

_____________________________

R. MWONGO

JUDGE

Attendance list at video/teleconference:

1. Ms Maingi for the DPP

2. Samuel Ndung’u Kamau - Appellant in person - present in Naivasha Maximum Prison

3. Court Clerk - Quinter Ogutu