[2022] KEHC 14147 (KLR)

Sifuna v Republic (Criminal Appeal 94 of 2018) [2022] KEHC 14147 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14147 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 94 of 2018

SN Riechi, J

October 4, 2022

Between

Robert Sifuna

Appellant

and

Republic

Respondent

(An appeal arising from the conviction and sentence by Hon G. P Omondi (SRM) in original Bungoma CMC Criminal Case No. 910/2016 delivered on 10th September, 2018)

Judgment

1. The appellant was arraigned facing charges of robbery with violence contrary to section 295 read with 296(2) of thePenal Code, the particulars being that on the February 17, 2016 at around 7. 30 pm at Kimatuni Village , Bumula Sub-County within Bungoma County jointly with others not before court while armed with dangerous weapons namely pangas and metal bars robbed Antony Juma Simiyu of one motor cycle registration number xxxx bajaj boxer and a mobile phone make Hel all valued at Kshs 120,000/- and at the time of such robbery used actual violence to the said Antony Juma Simiyu.

2. He denied the charges and the prosecution called witnesses in support of its case. The complainant testified as PW-1 and stated that on February 17, 2016 at about 7pm while in Kimwanga, the appellant came to him and wanted to be carried to Kimatuni Jeshi. They agreed on the charges and carried him up to a place in the middle of a sugar cane plantation when appellant got off the motor bike and other assailants emerged from the plantation. They hit him on the head and twisted his neck whereupon he lost consciousness waking up the following day. He was assisted by a passer-by to the hospital. He stated that he had known the appellant as he had carried him earlier. He lost cash, mobile phone and the motorcycle to the assailants.

3. PW-2 CPL Celesa Alaki stated that on February 18, 2016, while at Bumula police station, a report was made by Christine Nekoye that her husband had gone missing. He took her statement and advised her to continue the search. He later heard the appellant had been arrested where he charged the appellant with the offence of robbery with violence.

4. PW-3 John Waremba a clinical officer from Chwele Hospital stated that he had examined the complainant and concluded that the harm sustained was grievous. He produced into evidence the P-3 form.

5. Upon the close of the prosecution’s case, the appellant was put on his defence and elected to give a sworn defence. He stated that he was working as a watchman in a home. At one time, he went to a hotel and met a lady who inquired from him whether he knew where she could rent a house. He showed her around his home looking for the house and the lady did not take up the house as it was expensive. The lady later moved in with him before some men; the lady’s boss and 3 other men came and started beating him. He ran away before being arrested later and charged with the offence which he says he had no idea about.

6. Thereafter and after considering the evidence on record, the trial magistrate convicted the appellant and sentenced him to serve 25 years imprisonment thus the instant appeal which is anchored on the following grounds;1. That he pleaded not guilty to the charges.2. The learned trial magistrate erred in law and fact by overlooking material factors and taking into account the immaterial factors to sustain a conviction.3. The decision of the trial magistrate was made based on belief and anticipation not supported by the evidence on record.4. The case was not proved beyond reasonable doubt.5. The trial court erred in law by not carefully testing the evidence of identification by recognition of a single identifying witness at night.6. The trial court erred in not carefully weighing the conflicting evidence.7. The trial court erred in not diligently proving the evidence of stealing beyond reasonable doubt.8. The trial court did not consider the provisions of section 333(2) of the Criminal Procedure Code, article 50(2)(p), 24(1)(e) of theConstitution.9. The appellant’s defence was not rebutted.10. That the language the appellant used is not indicated.

7. By directions of the court, the appeal was disposed of by way of written submissions.

8. The appellant on the ground of identification submits that the complainant did not identify him by name when he made the report at the police station, that no source of light was mentioned by the complainant both when he allegedly boarded the motorcycle at Kimwanga and at the sugar plantation. He cites the cases of Simiyu & another vs Republic (2005) KLR 192, Muitanyi vs Republic (1986) eKLR, Terikali & another vs Republic (2005)eKLR.

9. On the ground that the trial magistrate did not weigh the conflicting evidence, it is submitted that there were no records of the police occurrence book entries for February 17, 2016 were produced in court since the appellant was not supplied with the investigations diary despite requesting for it. Similarly, the report by PW-1 to the police did not mention to the police of the physical features that could help identify the assailants and finally that the investigations officer did not visit the scene of crime or house where the appellant was arrested from.

10. On the ground that the ingredient of stealing was not established beyond reasonable doubt, it is submitted that ownership of the motorcycle was not proved in that the logbook produced bore the name of Christine Nekoye who was not called to testify. That there was no evidence that the said Christine is the appellant’s wife.

11. As regards the provisions of section 333(2) and the afore stated constitutional provisions, it is submitted that the sentence ought to run from April 8, 2016 when he was first arrested.

12. The respondent through Ms Omondi learned state counsel pointed out that the offence of robbery was established to the required standard and the only issue for determination in this appeal is on the appellant’s identity.

13. On the issue, counsel further contends that the complainant is the only person who saw the people who attacked him and the complainant had known him since he had carried him on previous occasions. Counsel relies on the authority in Mohamed Ali vs Republic (2013) eKLR, for the proposition that the trial court is required to warn itself of the dangers of a single identifying witness before convicting.

14. That in the circumstances of this matter, the court warned itself before convicting the appellant and there was evidence of recognition of the appellant by the complainant. The case of Anjononi & others vs Republic (1976-1980)KLR 1566has been cited in support.

15. Counsel supports the sentence and terms it lenient since the statute provides for death sentence.

16. As this is a first appeal, the duty of the court in such instances has been enunciated in several decisions of the court. In David Njuguna Wairimu vs Republic (2010) eKLR the duty was stated thus;'To analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.

17. The charge involved in this appeal is that of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The offence is established by section 296(2) and provides as follows;296(2. ) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company 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

18. The ingredients of the offence of robbery with violence were set out in the Oluoch v R (1985) KLR 549 as follows:

19. Robbery with violence is committed in any of the following circumstances:a)The offender is armed with any dangerous and offensive weapon or instrument; orb)The offender is in company with one or more other person or persons; orc)At or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes, or uses other personal violence to any person.

20. On the first ingredient that one establishes that the offender is armed with an offensive weapon, it was the complainant’s evidence that he was struck on the helmet and even when he woke up in the morning, his clothes were soaked in blood. This fact is supported by PW-3’s evidence that the complainant had sustained deep wounds on the left side of the head. The CT scan and X-rays showed that he had sustained injuries to the skull.

21. Had the appellant and his accomplices not used dangerous and offensive weapons, the kind of injuries exhibited herein would not have been sustained. It matters not that the exact weapons used in inflicting the injuries were not recovered. The nature of the injuries goes to show that the weapons used were dangerous.

22. I am thus satisfied that the first ingredient of the offence was proved to the required standards.

23. The second limb requires the prosecution to prove that the offender was in the company with one or more persons. The evidence presented at the trial court showed that the complainant was attacked in the middle of a sugar cane plantation. He stated that at some point in the journey, the appellant got off the motor cycle when other people emerged from the plantation and attacked him. It matters not that the other assailants were not arrested and or apprehended. This fact and element of evidence was not challenged and or rebutted by the appellant in cross examination and I hereby similarly find the element to have been established satisfactorily.

24. The third ingredient to be proved is that the offender wounds, beats, strikes or uses personal violence. From the evidence on record, it is clearly discernible that lots of actual violence was used on the complainant. This can be ascertained from the fact he lost consciousness during the attack which saw him lose his belongings.

25. The cuts and the injuries sustained on the skull and the fact that his clothes were soaked in blood is testimony that actual violence was used on him. The treatment notes were exhibited in court as well as the P-3 form and the oral testimony of PW-3 attest to the fact that actual personal violence was meted out on the complainant. The prosecution in a charge of robbery with violence can prove one of the circumstances to found a conviction. In this case, all the ingredients were proved.

26. The other issue raised in this appeal is the identity of the attacker. It is indeed true that the only evidence available on record was that of the complainant. This is informed by the fact that the attack took place deep in the sugar cane plantation.

27. The law on the subject of identification by a single witness was first stated in Abdalla Wendo v Republic (1953) 20 EACA 166 where it was held as follows:

28. Subject to certain exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this 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 the testimony of a single witness, can safely be accepted as free from the possibility of error.

29. It was further held in Wamunga v Republic (1989) KLR 426followed this view when it stated:It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.

30. Going back to the record, there is ample evidence that the complainant and the appellant were known to each other from previous interactions. The complainant was at the petrol station when he was approached by the appellant, negotiated and agreed at a price to carry him to Kimatuni Jeshi and back.

31. On his part, the trial magistrate took this fact into account and held as follows;I have taken caution and warned myself as this was evidence of identification at night by a single witness. There was no violence or threat of it. PW-1 and the accused were negotiating very peacefully and PW-1 was negotiating with his customer that he had served before and a person he has been seeing and not a stranger. The situation was therefore very favourrable for positive identification.

32. Having carefully perused the record, the court is satisfied that the situation obtaining at the time the complainant carried the appellant was favourable for positive identification. This is premised on the fact that the complainant and the appellant negotiated the fare to and fro Kimatuni Jeshi when there was no threat of violence. The fact that the complainant had known the complainant as he had carried him before lays credence and supports this conclusion.

33. On the issue of sentence, section 296(2) of the Penal Code reproduced above provides for death sentence. The magistrate herein handed down a 25-year prison term. This in my view is lenient.

34. In arriving at the sentence, the trial court took into account the appellant’s mitigation that he had a young family, the probation officers’ report and the fact that the appellant had been in custody which supports my earlier finding that the sentence is lenient in the circumstances.

35. Having found as above, I find no merit in this appeal which is hereby dismissed. The conviction and sentence are hereby affirmed.

DATED AT BUNGOMA THIS 4TH DAY OF OCTOBER, 2022. S.N. RIECHI.JUDGE