[2022] KEHC 27087 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CRIMINAL APPEAL NO. 2 OF 2018

SAMWEL JUMA TINDI..........................................................................APPELLANT

VERSUS

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

(From the original conviction and sentence in Criminal case No.88 of 2017 of the

Senior Resident Magistrate’s Court at Ndhiwa by Hon. Mary A.Ochieng –

Senior Resident Magistrate)

JUDGMENT

1. Samwel Juma Tindi, the appellant herein, was convicted for the offence of robbery with violence contrary to section 296 (2) of the Penal Code.

2. The particulars were that on the 17th June, 2017 at Riat, Ndhiwa Sub county of Homa Bay County, while armed with a hoe handle robbed Morris Odhiambo Omune of Kshs. 8,000. 00 and at the time of such robbery injured the said Morris Odhiambo Omune.

3. The appellant was convicted and sentenced to suffer death as prescribed by the law.

4. The appellant was in person. He raised the following grounds of appeal:

a) That the prosecution witnesses’ evidence was full of contractions, glaring gaps and inconsistencies.

b) That this was a frame up case against the appellant.

c) That the learned trial magistrate erred in law and facts by failing to warn herself against the danger of convicting the appellant on uncorroborated evidence of the complainant.

d) That the learned trial magistrate erred in law and fact by demonstrating that she was biased and prejudicial against the appellant. As a result the appellant was not accorded a fair trial as enshrined in article 50 (2) of the Constitution.

e) That the prosecution failed to prove their case beyond reasonable doubt.

f) That PW1’s evidence was incredible when put to test.

g) That vital witness was not called to testify in court.

h) That the main ingredients of robbery with violence were not proved.

i) That my identification was doubtful as visual recognition or identification brings miscarriage of justice.

j) That the sentence awarded was not just.

k) That the appellant’s defence was disregarded.

l) That inside a house, it is not possible to use moonlight for recognition.

m) That this case was poorly investigated as no search was done to ascertain the truth of the complaint’s allegations.

n) That the burden of proof was shifted to the appellant.

5. The appeal was opposed by the state through Mr. Ochengo, learned counsel.

6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

7. Section 296 (2) of the Penal Code provides:

If the offender is armed with any dangerous or offensive weapon or instrument, or is in 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.

Once the trial magistrate is satisfied that the prosecution has proved its case beyond reasonable doubt, the only legal sentence is death. The sentence in this case cannot be described as harsh and dehumanizing; it was the only legal sentence.

8. The alleged offence of robbery was committed at about 2 a.m. after the complainant was roused from sleep. There was no light in the house of the complainant except the moonlight that he said streaked into his house through the open door. When purported recognition is made when the obtaining circumstances are not favourable for positive identification or recognition, care must be taken to establish how such a recognition or identification came to be made. In the case of R. vs. Turnbull and Others [1976] 3 All ER 549 Lord Widgery CJ stated as follows:

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

…

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 relative and friends are sometimes made.

In the instant case, I will try to establish whether the purported recognition was free from error.

9. Morris Odhiambo Omune (PW1) told the court that his assailant broke his door and entered into his house. He went from his bedroom and met with the person he said he recognized as the appellant in the sitting room. When he called him by name he hit him before robbing him. He said that the moonlight that streaked into the sitting room aided him to recognize the appellant. From his description, the person he purported to recognize was facing him while he faced the source of the light. Even if we assume that the moonlight was sufficient, the much he could have seen was a silhouette. The purported recognition was not possible.

10. The other witness who purported to have recognized the appellant was Julia Owiti (PW2) and who is complainant’s mother. Her evidence was that when she went to answer the distress alarm raised by the complainant, the complainant told her that she had been injured by the appellant. She testified that she saw the appellant running from the complainant’s house.

11. The prosecutor did not elicit evidence from this witness as to what distance she saw the person she claimed was the appellant and what part of his body she saw. This was important especially considering that it was at night, she had just been roused from sleep and the assailant was fleeing.

12. PC Sang (PW1) in his evidence testified that the complainant reported that he had been assaulted and robbed. His evidence was that he did not know if the attacker was known to him (complainant), this ought to have put the trial court on alert on the issue of purported recognition. The complainant’s failure to report to the police at the earliest opportunity as to the person who robbed him raised doubt in his assertion that he recognized his assailant.

13. The evidence of corporal Mutuku Julius (PW4) contradicted the complainant’s evidence as to what transpired in the sitting room. This officer testified that the complainant informed him that the appellant picked a box in the sitting room. While struggling with the appellant, the latter hit him on the eye, and he fell down. This was when the appellant took Kshs.8, 000. 00 from his pocket and left.

14. The complainant’s version was that when he met with the appellant and called him by name, the appellant hit him on the forehead. This is when he fell down and the appellant took his money. When he screamed, the appellant hit him on the left hand. These two versions which are ascribed to the complainant are at variance and tend to show two versions of the same incident. The Court of Appeal in the case of Ndungu Kimanyi vs. Republic [1979] KLR 283(Madan, Miller and Potter JJA) held:

The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.

I find that the complainant portrayed himself as unreliable witness.

15. From the foregoing analysis of the evidence on record, I find that the conviction of the appellant was not safe. There was no sufficient evidence of robbery that was adduced against him.

16. I accordingly quash the conviction and set aside the sentence. The appellant is set at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 31ST DAY OF MARCH, 2022.

KIARIE WAWERU KIARIE

JUDGE