[2017] KEHC 2211 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL APPEAL NO. 126 OF 2015

(Being an Appeal from Original Conviction and Sentence in Criminal Case No.575 of 2012 of the Chief Magistrate’s Court at Naivasha before S. Mwinzi - SRM)

SAMUEL NJUGUNA GICHUHI…........……APPELLANT

-VERSUS-

REPUBLIC………………………………PROSECUTOR

J U D G M E N T

1. The Appellant herein was tried for the offence of Robbery with violence contrary to Section 296 (2) of the Penal Code. In that on the 22nd day of February, 2012 at Nagum Village in Gilgil District within Nakuru County, jointly with others not before court, while armed with dangerous weapons, namely a rifle and panga he robbed Simon Kanuthu Mwangi of cash Kshs 12,800/=, shop goods, one radio make Sony, two mobile phones make Nokia and Safaricom Kabambe, one panga and one cap all valued at Kshs 28,100/= and at or immediately before or immediately, after the time of such robber wounded the said Simon Kanuthu Mwangi.

2. At the close of the trial, the Appellant was found guilty and convicted. He was subsequently sentenced to death. He now appeals to this court citing seven grounds of appeal. Grounds 3 to 7 are that:

“3. THAT, the learned trial magistrate erred both in law and facts by passing this conviction on the evidence of identification by recognition when there had been no advance report of such recognition made to the police.

4. THAT, the learned trial magistrate erred in both law and facts when he convicted me in the matters of tracing the footprints while the evidence in support of the same was not watertight and could be used as the basis for a safe conviction.

5. THAT, the learned trial magistrate erred in both law and facts by convicting me the Appellant on the issue of recent possession but it was misdirection to the court since the evidence of recovery was not proved against the Appellant as required by the law.

6. THAT, the learned trial magistrate erred both in law and facts when he failed to analyze the whole prosecution evidence properly.

7. THAT, the learned trial magistrate erred both in law failing to give reason as to why the defence was acceptable or not.” (sic)

3. In the 2nd ground the Appellant challenges his conviction on what he asserts to be a defective charge sheet. His written submissions on this ground are that there is a discrepancy between the charge particulars and the complainant’s evidence regarding items stolen by the robbers, in particular the cash, phones, jerry can and school bag. In support of the submission that the charge sheet is therefore defective, he cites Section 214 of the Criminal Procedure Code and the case of Kilome -Vs- Republic [1990] KLR 194.

4. Regarding the 3rd ground, the appellant has taken issue with the evidence of identification/recognition stating that since the robbery occurred at night, the circumstances obtaining did not favour identification. He relied on the famous decision in Wamunga -Vs- Republic (1989) KLR 424, as well asSaid Bakari Ali & 2 Others -Vs- Republic [2001] eKLRand Joseph Leboi Ole Toroke -Vs- Republic Criminal Appeal No. 204 of 1987.

5. To fortify his submissions, on the requirement that a witness who claims to have identified a robber at the scene to give a description thereby to the police at the time of the report, the Appellant cited several authorities including Francis Kariuki Njiru & 7 Others -Vs- Republic [2001] eKLR.Equally in support of ground number 4 the Appellant challenges the evidence of footprints which were said to have led to his arrest.

6. On ground 5 the Appellant faults the procedure of the recovery of the panga from his home on the basis that no inventory was prepared and the prosecution failure to sufficiently connect the house with the Appellant through evidence. Thus in his view the doctrine of recent possession could not apply in his case. He relied on the case of Isaac Ng’ang’a Kahiga & Another -Vs- Republic [2006] eKLR. He complains regarding grounds 6 and 7 that the trial court failed to analyse the evidence as a whole, and in particular to consider the Appellant’s defence.

7. The appeal was opposed by the DPP through Miss Gikonyo. She reiterated the prosecution evidence at the trial particularly on the recognition of the Appellant by the complainant. She cited the case of Anjononi -Vs- Republic [1980] KLR 59. She also reiterated evidence on the recovery of one of the stolen items, namely a panga identified as the complainant’s property and dismissed assertions that the charge sheet was defective.

8. At this stage, the duty of this court as a first appellate court is as set out in Pandya -Vs- Republic [1957] EA 336 namely:-

“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the 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 then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

9. Through the five witnesses the prosecution presented the following case. On the night of 22nd February, 2012 Simon Kanuthu Mwangi(PW1) was asleep at about midnight in his house at Nagum, Gilgil. A gang of five men who were armed with an assortment of crude weapons, and possibly a firearm broke into his house. They assaulted PW1and his wife, injuring the former, while demanding for money. In total they forcefully took Shs 12,400/= from PW1’s wife. They also took mobile phones, a panga and other household items before leaving the home. PW1 had identified two of the men, being Njuguna (Appellant) and one Kamau.

10. When neighbours, including Duncan Irungu(PW2) came to the complainant’s home in response to the alarm raised, it was decided to wait until the next morning. Thus early in the morning of 23/2/2012 PW1, PW2, and another neighbour Mwangi Muraya(PW3) proceeded to a place called Kambi Somali, Gilgil, where they spotted the Appellant. They allegedly followed foot tracks to the said place. It seems that a gathered mob started to assault the Appellant and police were called to the scene. The Appellant was rescued and led the group to Marura Teacher’s estate and eventually to his house at Site Kaburi where the panga identified as PW1’swas recovered. The Appellant was placed in custody and later charged.

11. In his unsworn defence statement the Appellant said that he operated a boda boda business. That on the date of his arrest he was going about his work when three men confronted him demanding that he leads them to “other” suspects. He said he knew nothing about the robbery.

12. The prosecution evidence rested primarily on the identification of the Appellant at the locus quo and his possession ofPW1’s panga, said to have been stolen during the robbery.

13. Regarding the first question, the trial court observed, basing its findings on the case of Silas Gitau Njuguna & Another -Vs- Republic [2008] eKLR that:-

“On recognition evidence, PW1 has said he had known the Accused for about ten years. He even knew him by voice and appearance and says he also saw him using the powerful torches that they had. In the case of Silas Gitau Njuguna & Another –Vs- Republic (2008) eKLR, in a case where the complainant had known the Accused for ten years, the appellate court Ojwang J (as he then was) and Dulu J) made a finding that:-

Since it is already clear that the attackers had been well recognised, and their identity is not in issue, it would not, we think, have been necessary for the learned Magistrate to return to the question as to the state of lighting at the material time. The real issue at this stage is whether there had been a robbery.”

14. In this case, there is no dispute that robbery did occur at the complainant’s home. And as stated in Anjononi –Vs- Republic [1980] KLR 59:-

“……recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because, it depends upon the personal knowledge of the assailant in some form or other.”

15. It is not enough in my view however for a witness to claim that a robber or assailant was known to him before the offence. Where the offence occurs in circumstances that render recognition or identification difficult the court must carefully consider whether error-proof identification was possible in the circumstances. InJoseph Muchangi Nyaga & Another -Vs- Republic [2013] eKLRCourt of Appeal stated that:-

“Evidence of visual identification should always be approached with great care and caution (See Waithaka Chege versus Republic (1979) (KLR 217). Greater care should be exercised where the conditions for favourable identification are poor. (Gikonyo Karume and Another Versus Republic (1980) KLR 23) ……before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of and the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him……”

16. In the case of Abdalla Bin Wendo & Another -Vs- Republic [1953] 20 EACA166, the Court of Appeal for Eastern Africa stated that:-

“Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but his rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on testimony of a single witness, can safely be accepted as free from possibility of error.”

17. A further exhortation sounded by the court in Maitanyi -Vs- Republic [1986] KLR 198 was that the trial court must, before recording a conviction based on the evidence of a sole identifying witness warn itself and “be absolutely certain that the conditions for identification were free from any possibility of error or mistake.”

18. This court does not have the benefit of reviewing the judgment of the lower court in the case of Silas Gitau which the trial court herein relied on. But, on the basis of the judgment of the latter court which is before me, it does appear that the trial court gave scant attention to the fact that the conditions obtaining at the time of the robbery rendered identification difficult hence the need for caution. Neither did the trial court inquire in any way into the question whether there was any, or nature of light, its location, source, intensity and period of observation by the witness, in this case PW1,to enable him identify the robbers.

19. On my part, reviewing the evidence of the sole identifying witness, PW1, it is not clear whether the Appellant drew close to the witness at any time, and his distance relative to the light of the bright torch allegedly used by the robbers. Five men had burst into the house and descended upon the complainant with blows with the flat of their pangas. PW1’sevidence is silent at that initial stage regarding the role of the Appellant. He stated that the robbers “had a powerful torch which also helped me to know them. They were in the house for 30 minutes or so. Kamau, a brown man, was my customer.”

20. Earlier, he named two people, Njuguna and Kamau and claimed that he even knew the (Appellant’s) face, that he had given him some casual jobs previously. He also said the Appellant attempted to rape his wife before the gang left. What is missing from PW1’s version too is his and his wife’s physical position in the course of the transaction. Were they for instance, huddled in a corner or lying on the ground? These matters are important in determining the credibility of the alleged identification.

21. Further in the course of cross-examination PW1stated:-

“It was about 11. 45pm. It was dark. You had a torch. I did not tell police you had torches. I did not tell police I identified you. You did not shine the torch throughout. You were using it for other purposes. I had known you for long. About 10 years. I told police I knew you. We followed your footprints. You were arrest(ed) with the shoes we were following. I confirm you had the shoes……we found you at Kambi Somali.”

22. The reference to footprints leading to Kambi Somali is intriguing because from the prosecution evidence the Appellant resided at Site Kaburi and not Kambi Somali. The question that arises is why the witness would follow a track of footprints to Kambi Somali if he knew the persons who had robbed him in particular the Appellant. This is significant because, according to PW2’s evidence, PW1 apparently did not mention in the night that he had identified the Appellant among the robbers. According toPW2’s evidence this happened on the next morning at 6. 00am. It is clear however from PW1,2, and 3 that the group followed “footprints” in the ground for several kilometres which brought them to Kambi Somali, rather than a deliberate going out in search of specific persons.

23. Indeed in cross-examination PW3 stated:

“He (PW1) did not tell me how he identified you. I do not know how he noted your features. I just followed the shoe prints that I was shown. The path has a lot of human traffic.”

For his part PW2 stated in cross-examination that the group started tracing (Appellant’s) footsteps at 6. 00am.

24. It is clear that the group decided to carry out its own investigations and at the end of the track of alleged footprints found the Appellant at Kambi Somali, when he ran away. Could his conduct have convinced the group that he was the culprit?

25. PW1 had also claimed that he recognized the Appellant’s voice during the robbery. This evidence however fails the test set out in Choge-Vs- Republic [1955] 1 KLR stated that:-

“Evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances carry as much weight as visual identification. In receiving such evidence, care would be necessary to ensure it was the accused’s voice, that the witness was familiar with it and recognised it and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who said it.”

26. As earlier indicated there was little material inPW1’s evidence as to the exact role of the Appellant during the robbery. With regard to the Appellant’s voice, PW1 did not specifically state the words spoken by the Appellant, or even the other man identified as ‘Kamau’ at what proximity etc. The complainant’s evidence-in-chief in describing actions of the robbers generally referred to the robbers as “they.”

27. In my considered view, the trial magistrate erred by glossing over and accepting without analysis the identification and related evidence. Indeed the assurance drawn from his conclusion that the Accused had “not disputed the foot prints or that they were made by his shoe which was recovered from him” has no evidential basis. The evidence of footprints or tracks leading to the arrest of the Appellant was itself flimsy if not altogether incredible. But more, it also raised doubt whether indeed the searchers had any particular culprit in mind while setting out from PW1’s home on the morning of 23/2/2012.

28. Equally the evidence upon which the court invoked the doctrine of recent possession is tenuous. No sufficient connection was made between the Appellant and the room or house where the branded panga claimed by PW1 was found. A panga is a common domestic tool and the branding of a letter“K”on the handle is not unique. Nothing else belonging to PW1 was recovered in the house where the panga was found despite the large number of goods, including electronics and shop goods said to have been stolen fromPW1. While I do not accept the Appellant’s assertion that failure to prepare an inventory at recovery is fatal to the prosecution, I think the court in this case erred by invoking the doctrine of recent possession on what appears to be weak and doubtful evidence.

29. Having considered the strands of evidence arrayed against the Appellant the trial court made the conclusion that:-

“I have determined that the police have connected the Accused to the main charge on three grounds, firstly recognition by the complainant. Secondly there were footprints which linked the Accused to the scene. And finally there is sufficient evidence to warrant involving the doctrine of recent possession.”

30. With respect, the evidence upon which these determinations were based does not upon careful scrutiny warrant such a conclusion. The prosecution case, in my considered view falls below the required standard of proof beyond reasonable doubt. The conviction in this case is unsafe and cannot be allowed to stand for all the foregoing reasons. I therefore quash the conviction and set aside the death sentence imposed against the Appellant. He will be set a liberty forthwith unless otherwise lawfully held.

Delivered and signed atNaivasha, this 12th day ofOctober, 2017.

In the presence of:-

Mr. Mutinda for the DPP

Court Assistant – Barasa

Appellant – present

C. MEOLI

JUDGE