[2017] KEHC 3019 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL. NO 172 OF 2015

SETH OTIENO GILO……….……….……....……………………….APPELLANT

VERSUS

REPUBLIC……………..……..…..………………….……………..RESPONDENT

(Being an Appeal from Original Conviction and Sentence in Criminal Case No. 1009 of 2013 By Hon. P. O. Ooko (PM) sitting at Mavoko Law Courts dated 30th July, 2015)

JUDGEMENT

INTRODUCTION

1. The Appellant alongside others was charged with the First count of robbery with Violence contrary to Section 295 as read with Section 296(2) of the Penal Code Act, Cap 63 Laws of Kenya.

The Particulars were that on the night of 26th and 27th July, 2013 at [particulars withheld] estate in Athi River District within Machakos County jointly with others not before court being armed with dangerous weapons namely axes and iron rods robbed H R M of Kshs 23,000/=; mobile phone make Alcatel One Touch and one Safaricom Modem all valued at Kshs 45,000/= and immediately after such robbery used actual violence to the said H R M.

2. In the Second Count the Appellant alongside others was charged with the offence of robbery with violence contrary to Section 295 as read with section 296(2) of the Penal Code Act, Cap 63 Laws of Kenya.

The Particulars were that on the night of 26th and 27th July, 2013 at [particulars withheld] estate in Athi River District within Machakos County jointly with others not before court being armed with dangerous weapons namely axes and iron rods robbed A O Mof Kshs 21,000/=, mobile phone make Nokia 6500 and a laptop make ACER all valued at Kshs 116,000/= and immediately after such robbery used actual violence to the said A O M.

3. In the third count the appellant was charged with the offence of robbery with violence contrary to Section 295 as read with section 296 (2) of the Penal Code Cap.63 of Laws of Kenya.

The Particulars were that on the night of 26th and 27th July, 2013 at [particulars withheld] estate in Athi River District within Machakos County jointly with others not before this court being armed with dangerous weapons namely axes and iron rods robbed L K M of Kshs 21,000/=; mobile phone make Nokia E63 and a laptop make Toshiba all valued at Kshs 100,000/= and immediately after such robbery with violence used actual violence to the said L K M.

4. In the fourth count the appellant was charged with the offence of robbery with violence contrary to Section 295 as read with section 296 (2) of the Penal Code Cap.63 of Laws of Kenya.

The Particulars were that on the night of 26th and 27th July, 2013 at Lukenya Hills estate in Athi River District within Machakos County jointly with others not before court being armed with dangerous weapons namely axes and iron rods robbed P A I of a mobile phone make Mhong valued at Kshs 4,000/= and immediately after such robbery with violence used actual violence to the said P A I.

5. In the fifth count the appellant was charged with the offence of Rape contrary to Section 3(1) (a) (b) (c) as read with the Section 3(3) of the Sexual Offences Act No.3 of 2006.

The Particulars were that on the night of 26th and 27th July, 2013 at [particulars withheld] estate in Athi River District within Machakos County intentionally and unlawfully caused his genital organ (penis) to penetrate the female genital organ (vagina) of H R M without her consent.

He is also charged with an alternative count number five herein above of an Indecent Act with an adult contrary to Section 11A of the Sexual Offences Act No.3 of 2006.

The Particulars were that on the night of 26th and 27th July, 2013 at [particulars withheld] estate in Athi River District within Machakos County intentionally and unlawfully caused his male organ (penis) to come into contact with the female genital organ (vagina) of H R M without her consent.

6. The appellant denied all the above counts. The prosecution called eleven (11) witnesses in support of their case. The appellant gave a sworn statement in his defence.

7. PW-1, PW-2, PW-3 and PW-4 were the complainants husband, wife and their two (2) daughters they all indicated in their testimonies that they were in the house on the night of 26. 7.13 at 11. 20pm and they had retired to bed when they heard a loud bang at the rear kitchen window when they saw three men struggling to break the window grille. PW-1 testified that they all locked themselves in the same room and started screaming for help. One of the attackers shattered their bedroom window and threatened to shoot them if they continued to scream. The first person who entered aimed an axe at PW.1 but he ducked the same and it landed on the wall.PW-1 went on to say that the second attacker later hit him with a metal rod and he fell down and started bleeding, he woke up and the attacker demanded for his wallet. He gave it to him with a total of kshs 23,000/=, they later demanded for the two laptops which they were given and his phone Nokia E63 belonging to his daughter and a modem he had obtained for the wife Later they all gained access to the room and they were all dressed in Marvin’s. PW-1 went on to say that having been beaten he never managed to identify any of the attackers on the material night because there were no lights in the house but the security lights were on. The same was reiterated in his cross-examination by the Appellant.

8. PW-2 testified that she was able to identify the attackers through the security lights which were so bright. She went on to say that one of the attackers broke their bedroom window and threatened to shoot them with a gun if they did not keep quiet. She reiterated that they were all beaten randomly and the attackers demanded for money and she gave them her handbag where she had Kshs 23,000/= and her cell phone E-63. She was later assaulted by the other attackers and sustained several injuries, the appellant raped her by the kitchen door. Upon cross examination she confirmed that she saw the appellant very clearly because she tried to fight him when he hit her so bad. Upon reexamination she testified that it was her husband who took her and the children to hospital for treatment, and that no one came to their rescue. Even the neighbors and the guards. She identified some of the recovered items.

9. PW-3 in her testimony confirmed that the street lights were on and that is how she was able to identify the attackers. She went on to say that she managed to escape from the attackers and she went up to the gate where she informed one of the guards and the guard told her to shut up and pretend that she was, making noise. Her efforts to scream for help proved futile since no neighbor responded. On getting back to the house she found the attackers had fled. She also confirmed that she was not assaulted although the said robbers were armed with an axe, clubs and even a gun. Upon cross-examination she confirmed that she managed to see the appellant clearly with the aid of the street lights and he was the one who assaulted PW-2. She also confirmed that it was PW-1 who took all of them to hospital.

10. PW-4 reiterated the same events as PW-1 had testified and she went on to state that she was also raped but could not positively identify the attacker during the identification parade, because he was a huge person not in the parade. In cross-examination she confirmed that she was able to identify the attackers through the help of the street light.

11. PW-5 who was the caretaker of the estate testified that on the material night of the incident he was in his room when someone came and informed him that one of the neighbors had been attacked. He tried to call the boss but his phone was off, he went out but the attackers had fled. The next day he went to the complainant’s house and found they had gone to hospital but he saw a bedroom window had been shattered. He later recorded his statement with the police.

12. PW-6 the Investigating officer confirmed that he conducted the identification and the appellant was positively identified by PW-2, PW. -3 and PW-4 independently. He indicated that the correct procedure in the identification parade was followed. PW-7 testified that he witnessed his brother buy a second hand phone make Nokia at Kshs 1,000/= from the appellant but the brother stayed with it for four days when the appellant requested him to give it back to him and he refunded the Kshs 1,000/=. In between the four days PW-7 borrowed the phone once when his phone had gone off. He was later arrested by the police on 10. 9.2013 and was interrogated about the said phone.

13. PW-11 one Dr.Kize Sharko testified that he had examined PW-2 on 30. 12. 2013 and found that she had a laceration on the left side of the head, fractured right ulna fore-arm. She also testified that PW-2 said that she had been raped but upon examining her she confirmed her genitalia was normal, the hymen had old remnants without any lacerations. He also filed a P.3 form in regard to PW-2. On cross examination by the appellant he confirmed that he never treated PW-2 but only conducted the said examinations but PW-2 had showed him treatment records from Mater Hospital.

14. The appellant in his defence indicated that he received a call from the investigating officer on 10/9/2013 and he directed him to where his working place was at the barbershop. Upon his arrival he interrogated him about a certain phone make Nokia E-63 he had used. He informed him that he had gotten it from the first accused, he later led the officer to where the 1st accused was working and they were both arrested and locked in the cell. On 12. 9.2013 he was arraigned in court and charged with all the five counts which he never committed. Upon cross-examination he indicated that he could not recall where he was on the night of the incident, but he had obtained the phone from one of the suspects as collateral when he lent him Kshs 1,000/= but after the 1st accused failed to pay back his 1,000/= and he had taken the money from the office he decided to sell the phone to the one of the suspects who failed to raise the money and he took the phone. On the other hand he owed another suspect Kshs 800/= and since he did not have money he ended up giving him the phone.

15. The Trial Magistrate having been satisfied that the prosecution had proved its case beyond reasonable doubt proceeded to convict and sentence the appellant on four counts of Robbery with violence and sentenced to death as stipulated by the Penal Code for the offence committed and acquitted him with regard to count 5.

16. The appellant being dissatisfied by the decision of the trial court appealed against the judgment on the following grounds:-

a. THAT he was prejudiced and unable to prepare his defence properly due to being charged with a duplex charge hence his conviction was manifestly unsafe.

b. THAT his conviction was not based on sound evidence and there was no justification for the same.

c. THAT the trial magistrate erred in both law and facts by failing to observe that the case for the prosecution was not proved to the required standard needed in law.

d. THAT, the provisions of Section 169(1) of the CPC was not complied with in relation to his defence statement.

17. Both the Appellant and the respondents canvassed the appeal by way of submissions.

SUBMISSIONS BY THE APPELLANT

18. The Appellants in his undated submissions submitted on the ground of duplicity of the charge that having been charged with four main counts and each count having more than one offence amounted to duplicity of the charge and hence that amounts to an incurable mistake. He placed reliance on the case of Kayoka –Versus-Republic (2003)KLR 406which held that ;

“When a charge is duplex and the accused person goes through the trial, the fairness of the process is fundamentally compromised as it is not clear as to what the exact charges are and as a result he may not be able to prepare a proper defence ’’

He went on to quote the case ofLaban Koti-Vs-Republic (1962) EA.439where court heldthat in deciding whether there is duplicity in a charge, the test is whether a failure of Justice has occurred or the accused has been prejudiced.

19. Further he indicated that it was not clear what charge exactly he was charged with and therefore making it hard for him to raise his defence. He quoted the case of Nzioka-Vs-Republic (1987) KLR 613where it was stated that it is paramount requirement of justice that an accused person must know precisely what he is charged with and where a statutory provision creates more than one offence in a section, the proper and safe method of preferring a charge under such an enactment is under separate counts.

20. He went on to state that his conviction was manifestly unsafe due to being charged with a duplex charge and he referred to the case ofJoseph Njuguna Mwaura and Others-Vs- Republic, Criminal Appeal No.5 of 2008(CA)where emphasis was placed on the proof of the ingredients of Section 296 before convicting one for the offence of robbery with violence.

In conclusion on this ground the appellant therefore submitted that his conviction on a duplex charge was unsafe because the offence of robbery with violence is different from the offence defined under Section 295 of the Penal Code Act.

The appellant did not submit with regard to the other grounds of appeal.

SUBMISSIONS BY THE RESPONDENT

21. The respondent filed their submissions dated 29th May, 2016 on 31st May, 2017.

22. The prosecution conceded to the appeal and subsequently requested for a retrial on the grounds that there was duplicity of the charge. They submitted that Section 295 of the Penal Code is merely a definition section whereas Section 296(1) and (2) of the Penal Code dealt with specific degrees of the offence of robbery, Therefore the offence of robbery is different from the offence defined under Section 295 of the Penal Code.

23. Placing reliance on the case of Joseph Njuguna Mwaura & 2 Others –Vs- Republic (2013) eKLR they stated that it would be incorrect to frame a charge for the offence of robbery with violence under Section 295 and 296(2) of the Penal Code.

DETERMINATION

This being a first appeal I am guided by the principle laid in OKENO vs REPUBLIC [1972] EA32). I am therefore required to re-evaluate the facts afresh, assess it and make my own independent conclusion. I have considered the appeal and the submissions tendered herein. The main issue that falls for determination is:-

a. Whether indeed there was duplicity of the charges and to what extent?

24. The major issue to resolve here is whether indeed there was duplicity of the charges and if in the event there was, what effect did it have? Did it prejudice the appellant in any way? Was the evidence adduced at the trial court firm to sustain the conviction? These are all questions to be determined in resolving the issue of duplicity. What constitutes a good charge is explained under Section 134 of the Criminal Procedure Code which reads as follows:

‘’Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged’’.

Section 135 (1) & (2) provides for instances where Joinder of counts in charge or information is allowed. They read as follows:

1. ‘’Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.

2. Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count’’.

From the above provisions it is correct to state that duplicity of charges would occur in instances where more than one offence is charged in one count. In our instant case the appellant was charged with the offence of robbery with violence under Section 295 as read together with Section 296(2) of the Penal Code Act. Section 295 of thePenal Codeprovides as follows:

"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".

On the other hand, Section 296 of the Penal Code states as follows:

"(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 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.

25. Placing reliance on the case of Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR, where a five Bench decision of the Court of Appeal after considering a number of cases, stated as follows:

"We reiterate what has been stated by this Court (sic) in various cases before us: the offence of robbery with violence ought to be charged under Section 296 (2) of the Penal Code. This is the section that provides the ingredients of the offence, which are either the offender is armed with a dangerous weapon, is in the company of others, or if he uses personal violence to any person. The offence of robbery with violence is totally different from the offence defined under Section 295 of the Penal Code, which provides that 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 steal. It would not be correct to frame a charge for the offence of robbery with violence under Section 295 and 296(2) as this would amount to a duplex charge".

Based on the foregoing it would therefore be in order to admit that indeed the charge was duplex and the Appellant ought to have been charged under Section 296(2) of the Penal Code alone.

26. Even though the lower court received sufficient evidence from the several witnesses lined up by the Prosecution, I find that there is need for retrial. The need for retrial is solely on the ground that the Appellant faced several counts of robbery with violence which have been found to have been duplex in nature, the duplicity had the effect of making the Appellant not to understand the exact offences he went through the trial process. In the case of FATEHALI NANJI =Vs- REPUBLIC (1966) EA 343 the court held that a retrial will in general be ordered when the original trial was illegal or defective.

27. The Counsel for the respondent rightly sought for retrial in view of the duplicity of the charges. I find this is an appropriate case for a retrial. The Appellant will not be prejudiced since he has barely served a fraction of the sentences imposed. Although the Appellant seeks for an acquittal, I find the same will not be in the interest of justice.

28. In the result the appeal succeeds to the extent that the conviction and sentence by the trial court is set aside and an order for re-trial do ensue. The Appellant is herby ordered to be produced before the Senior Principal Magistrate at Mavoko Law Courts on the 24/10/2017 for retrial.

It is so ordered.

Dated, signed and Delivered at Machakos this 12thday of October, 2017.

D.K. KEMEI

JUDGE

In the presence of:

Seth Otieno Gilo the Appellant

Saoli for the Respondent

Kituva- C/A