[2017] KEHC 3319 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 11 OF 2014

SILAS NDWIGA NYAGA…………………..…1ST APPELLANT

ANDERSON MUTURI MUGO…………...……2ND APPELLANT

VERSUS

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

JUDGMENT

The Appellants herein alongside two other accused persons were on 13th February, 2013 charged with the offence of Robbery with violence contrary to Section 296 (2) of the Penal Code. The particulars were that on the 11th day of February, 2013, at Kathangariri in Embu within Embu County, jointly with others not before the court, being armed with dangerous weapons namely a pistol, robbed Joyce Gichugu Nyaga the treasurer Nguriu Mwirutiri Women Group cash Ksh. 64,170/= the property of the said Nguriu Mwirutiri Women Group.

The first Appellant faced an alternative charge of having suspected stolen property contrary to Section 323 of the Penal Code.

The particulars were that, on the 11th day a February, 2013 at Kathangariri in Embu within Embu County, having been detained by No 70320 public constable Misheck Meeme as a result of the exercise of the power conferred by section 26 of the criminal procedure Code had in your possession Ksh. 37,540 (thirty seven thousand and five hundred and forty) reasonably expected to have been stolen from Joyce Gichugu Nyaga the treasurer Nguviu Mwirutiri Women Group.

The Appellants herein together with the other two accused persons were found guilty of the offence and sentenced to death.

The Appellants filed separate Appeals being civil Appeal Nos. 11 and 12 of 2014 which were consolidated with operative file being 11/2014 with Silas Ndwiga Nyaga and Anderson Muturi Mugo as the first and 2nd Appellants respectively.

In his amended petition of Appeal dated the 18th day of 2017, the first Appellant has listed 5 grounds of Appeal which are basically that the learned trial Magistrate erred by convicting the first Appellant when the case against him had not been proved beyond reasonable doubt, in that there was no identification at all, the court relied on hearsay evidence, the court ignored the defence put forth by the first Appellant and that there were inconsistences, contradictions and untruths in the evidence adduced.

On his part, the second Appellant based his Appeal on identification, rejection of his defence by learned Magistrate and that the evidence adduced by the prosecution witnesses was inconsistent and was not corroborated.

In support of the case, a total of ten (10) witnesses were called by the prosecution and at the close of prosecution’s case, the Appellants were put on their defence.

This being the first Appeal, I am alive to the fact that the court is under duty to re-evaluate the evidence that was adduced before the trial court and come up with an independent conclusion bearing in mind that it did not see the witness testify. (See the case of Republic Versus Otieno)

PW1, Lucy Karimi was the chief Whip of Nguviu Mwirutiri Women Group which consists of 20 members but on 11/1/2013 when they met only 14 members were present. She stated that on 11/1/2013 at around noon the group had met and was collecting money while the treasurer and another member were confirming it with a view to banking the same. It was a total of Ksh. 64,170. In attendance was also a Kenya Women finance representative. As they went on with the meeting, two people came, one was short and the other was tall.

PW1 was seated next to the door. The tall man wearing a black shirt, yellow cap and spectacles requested to see the owner of the place and he was advised that he was out.

As she rose to lead the two men to where the owner of the place was, one of them ordered them to lie down and he was holding something on his hand. They were ordered to hand over mobile phones which the two men collected after they had searched for money from them. The two men later left but locked the ladies from outside but they were able to scream for help.

One of the ladies namely Wanjiru contacted the area Chief and the two men were arrested the same day. Later police from Kathunguri arrived and she gave description of the suspects. The first Appellant was arrested with the money which was in a black paper bag amounting to Ksh. 37,540/=. She said the incident took over 2 hours although she did not have a wrist watch. She identified the persons she saw at the scene as the Appellants herein.

On Cross examination by the 1st Appellant, she stated that the people who robbed her one was tall and the other one short. She also stated that the first Appellant was wearing a cap but she was not there when they were arrested.

On cross examination by the 2nd Appellant she stated that the incident took place at noon and it was the 1st Appellant who ordered them to lie down. It was her evidence that she saw the 2nd Appellant who is short with a wide mouth and that she had seen her before. He was arrested 300 meters from the scene and she recognized him because he had not changed his shirt which was blue in colour and had a green vest with some white spots.

PW2, Joyce Kejiko Nyaga was the treasurer of the group. Her duty was to collect money from the group and to deposit it into the account. It was her evidence that 11/2/2013 at noon, the group had a meeting in Kinyua’s house and in attendance were 16 persons and 2 ladies from Kenya Women Trust. As she was collecting the money, a tall man in spectacles came and stood at the door and enquired about mzee’s home. He said he wanted to be lead to the landlord and PW1 was requested to lead him but immediately thereafter, he ordered them to lie down. She had the money which was Ksh. 64,100. Later another man appeared and entered the room where they were.

She tried to hide the money but the 1st Appellant took it together with the mobile phones and fled after locking the door from outside. The secretary opened the door using the window and they went out screaming towards a nearby shamba where people were picking tea and the two Appellants were arrested in the shamba and she identified them. The first Appellant was found with ksh. 37,540. She stated that the robbery took about 30 minutes.

On cross examination by the 1st Appellant, she stated that she saw him on that day and that he was arrested by the members of the public with the money. She was not present when the Appellants were arrested.

On cross examination by the 2nd Appellant, she stated that she saw him on that day but she was not there when he was arrested. She told the court that they pursued the Appellants as they screamt and they were arrested by the members of the public. She denied that the Appellants were arrested because they were strangers in the village.

PW3, Stella Wanja, said that she was in the meeting on the material day when they collected Ksh. 64,170 for loan payment. As they were arranging the money, two men entered. One of them who was tall appeared first followed by another one who was short. The tall man requested to be shown Mzee’s house and as PW1 rose to direct him, she was ordered to lie down and the rest of us as well. The 2nd Appellant took her purse which had Ksh. 2,000 and ordered her to place her mobile phone in a polythene bag. The tall man had a pistol that he pulled out of his pocket and he stepped on her hand. She identified the tall man as the first Appellant and was wearing a yellow cap while the short man was the 2nd Appellant. The men later left and locked them from outside but they managed to open the door and followed as they screamt for help and the two were arrested near the tea plantations. She stated that Ksh. 34,540 was recovered from the 2nd Appellant.

On cross examination by the first Appellant, she stated that she saw him when he robbed them and that he was in a yellow cap and glasses. She said he was arrested because he was a stranger and that no person in that village resembles him. It was her evidence that the first Appellant had a pistol but he was not found with money.

On cross examination by the 2nd Appellant she stated that she saw him at the scene and he identified him as the one who took her money and put it in his socks and also her mobile phone.

PW4, Jacinta Wawira Nyaga, was the secretary to the group. She stated she was in the meeting at Mzee Kinyua’s house when they collected a total of Ksh. 64,170 for servicing a loan with Kenya Women Finance Trust when two men arrived and one was wearing lenses. He had an object covered with cloth. It was her evidence that the first Appellant was the first to enter and he is the one who enquired about the Mzee and he was the one who ordered them to lie down. She stated that the Appellants beat them and later went away and locked the door from outside. One of the ladies opened the door through the window and they went out screaming towards the tea plantation from where the Appellants were later arrested. She was present when the Appellants were arrested.

On cross examination by the first Appellant, she stated that he was found with Ksh. 37,540 but the total collected was Ksh. 64,170. She told the court that the first Appellant had a cap and lenses.

On cross examination by the 2nd Appellant she said she recognized him, that she met him inside the tea farm and he pleaded with her. He is the one whom beat them.

PW5, Alusina Ruguru, was the assistant treasurer in the group. She told the court that on 11/2/2013 she was in group meeting when two men arrived as they had just collected Ksh 64,170 and as she was arranging it. They asked for mzee and she told PW1 to lead them to the landlord but immediately thereafter, the first Appellant ordered all of them to lie own. The 2nd appellant had an object which she did not clearly see and he started beating them. She was hit on the chest as she prepared to lie on the ground. It was the first appellant who collected the money form her. The 1st appellant left with the money as the 2nd appellant was left behind locking the door. Later, they were able to open the door and pursue the Appellants. Some two people whom she identified as the Appellants herein were arrested and Ksh.37, 540/- was recovered from one of them.

On cross-examination by the 1st Appellant, she stated that he was wearing a cap and spectacles and she said she saw her very well. She was not there when the appellants were arrested.

On cross-examination by the 2nd Appellant, she said she saw him at the scene and that the 2nd Appellant was not arrested because he was a stranger in the area but it was because he robbed them. She further stated that the Appellants were arrested after the ladies raised an alarm but she was not there when they were arrested.

PW 6, Faith Muthoni, was working with KWFT as an officer. It was her evidence that on 13th February, 2013 she was attending a group meeting for Nguviu Mwirutiri Women Group and while there, two men appeared and ordered them to show them where mzee was. As PW1 stood to do so, they ordered them to lie on the floor and demanded all the money and the mobile phones. She saw something that appeared like a pistol. They had collected Ksh.64,170/-. The two men took the money and the mobile phones and locked them from outside. One of the ladies opened the door through the window, they screamt and members of the public joined them to pursue the two men who were both arrested. The first Appellant was arrested with ksh.37,540/=.

On cross-examination by the 1st Appellant, she said she could not confirm who between the Appellants had a pistol but she confirmed having seen the 1st Appellant.

On cross-examination by the 2nd Appellant, she stated that she did not lie down immediately but only did so when the Appellants started beating them. She could not confirm clearly how the 2nd appellant was dressed. That the 2nd appellant was arrested after 25-30 minutes after the robbery but he was not arrested with any money or property. She was not there when they were arrested.

PW 7, Joseph Njeru, was on the material day harvesting tea at home near Kathingarire Market when he heard screams and people shouting “thieves”. He saw two men running away being pursued by other people and he joined them. A lady told him that the two men had robbed them. They caught up with them in the tea farm and they were arrested. By this time police officers had arrived, they searched the two and recovered Ksh.37,540/- from the 1st Appellant.

On cross-examination by the 1st Appellant, he stated that he identified him because he passed near him as he was being pursued by members of public. He was not there when the 1st Appellant was arrested but money was found with him.

On cross-examination by the 2nd Appellant, he stated that he saw him well as he was being pursued by the members of public and he was arrested near where he was at the tea bushes, and he was there when he was arrested.

PW 8, Meshack Maina, a police officer stationed at Kibogo Police Post stated that on the material day he was summoned by Sergeant Limpanze who informed him that members of public had contacted him over a robbery incident. He was directed to proceed to the scene which was at Kithangarire Market. On his way, he met a crowd of people who led him to where the suspects who had robbed a group of women were, and he re-arrested them. On carrying out a search he recovered Ksh.37,540/- from the 1st Appellant which he recovered from his pockets, one wallet which had his identity Card and a Nokia Phone 1200.

It was his evidence that he also re-arrested the 2nd Appellant who had also been arrested by members of the public and escorted both of them to Kibogo Police Post. He stated that the group was robbed off Ksh.64,170/- out of which ksh.26,730/- was recovered. He identified the people he arrested as the Appellants.

On cross examination by the 1st Appellant, he stated that members of public were present when he re-arrested him and that a mobile phone was recovered from him. The 1st Appellant was arrested about 4 Kilometers from the scene.

On cross-examination by the 2nd Appellant, he stated that he was arrested about 3 kms from the scene and he was identified by the group as robbers.

PW 9 Sp. Edwin Kamau, was stationed at DCIO’s office in Embu at the material time. He took a statement under inquiry from the 3rd accused after cautioning him.,

PW 10, PC Peter Moses, investigated the case. On 11th February, 2013, he was in the office with other officers when the DCIO E. Kamau summoned him to go to Manyatta area. They went and collected the two suspects who are the Appellants herein, and took them to Embu. He interrogated them and this led to the arrest of the 3rd and 4th Accused persons. He produced the money that was recovered and the mobile phones as exhibits in the case.

On cross-examination by the 1st Appellant, he stated that the 1st Appellant was arrested with Ksh.37,540/-, mobile phone and a wallet and that the total amount stolen was Ksh.64,170/- . That the 1st Appellant was found with ksh.47,540/-. He further stated that the money had no marks. He denied that he framed the 1st Appellant. That the 1st Appellant signed an inventory to the effect that property was recovered from him. That the 1st Appellant had weapons but they were not recovered.

On cross-examination by the 2nd Appellant, it was his evidence that the 2nd Appellant was arrested almost immediately after the robbery and he was not found with anything connected with the robbery.

The two Appellants were put on their defence and both gave sworn statements. The 1st Appellant told the court that on the 11th February, 2013 he left home to go and buy macadamia at Kibugu area. At around 11 a.m. while looking for Macadamia, he met a group of people who told him to stop. He identified himself but they started beating him accusing him of being a thief. Latter the police came and arrested him and took him to Kibugu Police Post. That at the station he removed the identity card, voting card and money which he had in his pocket amounting to Ksh.37,540/-. He was later charged with the offence the subject of this appeal.

On cross-examination by the prosecutor, he stated that the people who arrested him were about 30 whom he did not know. He said he was new in the area, his home being about 10 kilometers from Embu.

On the part of 2nd appellant, it was his evidence that on 11th February, 2013 he harvested his miraa and boarded a matatu to town to sell the same where he arrived at 100. 00 a.m. He sold his Miraa and after he had finished, he went to a bar where he bought cigarettes and a beer and while there, a prospective senator namely Lenny Kivuti was looking for people who could campaign for him and he joined the campaigners. They campaigned in several areas and by the time they reached Kathangariri area he was already drank and got a black out as a result of which he was left at the said town. At around 2. 30 p.m, he felt people beating him accusing him of being a thief and he found himself in the bushes. He was arrested by police officers, taken to Embu Police station and later charged.

On cross-examination by the prosecutor, he stated that he was arrested at tea bushes by a mob.

The appeal proceeded by way of oral submissions. On the part of the 1st Appellant and by way of written submissions on the part of the 2nd Appellant. The court has considered the grounds of appeal, the evidence on record and the submissions made by the respective parties.

The Appellants herein had been charged with the offence of robbery with violence. The 1st appellant faced on alternative charge of handling stolen property but having been found guilty of the main charge, the court could not make a finding on the alternative charge.

The offence of robbery with violence has three ingredients as set out by the Court of Appeal in the case of Oluoch Vs Republic (1985) KLR cited in the case of Mohammed Ali Vs Republic (2013) eKLR where it was held: -

“Robbery with violence is committed in any of the following circumstances: -

a. The offender is armed with any dangerous and offensive weapon or instrument; or

b. The offender is in company with one or more person or persons; or

c. At or immediately before or immediately after the time of robbery, the offender wounds, beats, strikes or uses other personal violence to any person …. (our own emphasis)”

The prosecution needed to prove all the three ingredients beyond any reasonable doubt. As pointed out elsewhere in this judgment, the 1st appellant has relied on the grounds that; the identification was not proper, court relied on hearsay evidence, the court ignored his defence, and that there were inconsistences, contradictions and untruths in the evidence adduced by the prosecution witnesses.

The 2nd appellant’s grounds of Appeal are similar to those of the 1st Appellant and I shall consider them together.

On the issue of identification, the Appellants contended that they were not properly identified at the scene and that at the time of arrest, there was no group member present and consequently theirs was dock identification. The 1st Appellant in his submissions, by his counsel, averred that there was no reason why he was arrested. Counsel submitted that by the time the 1st Appellant was arrested, PW 1 had not given the police any description of the suspects and that the description was given to the police after the suspects had been arrested. That the description as given out by PW 2 is not anywhere in the evidence on record.

It was further submitted that in cross-examination, PW 2 stated that the 1st Appellant was arrested because he was a stranger in the area and that no person in that village resembles him.

The 2nd Appellant submitted that the robbery took a very short time and that there was not sufficient time for identification of the suspects. He further submitted that an identification parade was necessary in the circumstances of this case but it was not done and that what we have in this case is dock identification. He averred that none of the group members was there when they were arrested.

On behalf of the state, it was submitted that PW 6 saw the Appellants at the scene, they are the people who robbed them and that they had a common intention.

This court has carefully perused the evidence on record. The evidence of PW 1, PW 3, PW 4, PW 5 and PW 6 is clear that they identified the two Appellants as the people who robbed them on the material day. In fact, the witnesses described the Appellants and for the 1st Appellant, how he was arrested. According to PW 1 and PW 3, they stated that the 1st Appellant was wearing a cap and spectacles. The court notes that the robbery took place during the day at noon and therefore the witnesses were able to see the suspects and identify them as stated in their evidence. The 1st Appellant was described as the tall black man while the 2nd Appellant was described as the short man. PW 1 described him as the man with a wide mouth.

The Appellants have contended that it was dock identification because none of the group members were there when they were arrested. In his regard, the evidence on record shows that PW 4 was present when the 2nd Appellant arrested. She was among the group that pursued the two Appellants to the tea plantation. She also confirmed that the 1st Appellant was arrested on the other side of the river not far from where the 2nd Appellant was arrested and she saw him. The arrest did not take long after the robbery which meant that the memory of the suspects that she had seen at the scene was still very fresh in her mind. Her evidence was corroborated by that of PW 8 who confirmed that the Appellants were arrested not far from the scene of the robbery.

I wish to note that the identification of the Appellants was not by a single witness but was by several witnesses. It is not likely that all of them could have mistaken the Appellants.

On the issue of dock identification, the court of Appeal in the case of John Nduati Ngure Vs R(Criminal Appeal No. 121 of 2014) had this to say: -

“The Appellant has argued that he ought to have been subjected to an identification parade and that the learned magistrate erred in law is relying on the evidence of a single identification witness to convict him. As we understand the law on identification of suspects, identification parades are useful but they are not always mandatory; dock identification may be sufficient if a trial court may, depending on the circumstances of the case, find the identification to be sufficient. We suppose this is what the Court of Appeal meant in Muiruri & Others Vs Republic (2002) Iklr 274”

The court went further and observed;

“Evidence of visual identification in Criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger whenever the case against a defendant depends wholly or to a great extent on the correctness of identification of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”

See Wamunge Vs Republic (1989) KLR 424.

However, the court in the case of James Tinega Omwenga Vs Republic, Criminal Appeal No. 143 of 2011 the court expressed itself as follows: -

“The law is settled that in general identification of a suspect who was a stranger at the time the offence was committed which was not followed by the witness describing the suspect to the police who would organize a properly conducted identification parade at which the witness is afforded an opportunity to affirm his identification by pointing out the suspect, is a dock identification which in some cases is regarded as worthless.”

This court is alive to that position in law, but I am satisfied that on the facts and circumstances of this case the identification was free form error and the learned magistrate did not err in that regard.

On the contention that the evidence adduced by the prosecution witnesses was inconsistent and not corroborated, I find that there may have been minor contradictions which in my view were not material to the case. This was with regard to the duration the robbery took, the distance from the scene to where the Appellants were arrested and whether the 1st Appellant was wearing a T-shirt or a shirt. The most important thing is that there is sufficient evidence of identification of the Appellants and that they were both arrested not long after the robbery had taken place and not far from the scene of the robbery.

Looking at the evidence on record, it is clear that the first Appellant was armed and this is borne out by the evidence of PW3 which is supported by that of PW2 who also stated that the first Appellant had a pistol and that they beat them so that they could surrender money and therefore the 2nd ingredient of the offence was proved. The Appellants were together, they went to the room at the same time, and executed the mission together which means that they had a common intention to commit the offence.

On the defences offered by the Appellants, the first Appellant told the court how he met a group of people who stopped him and upon identifying himself, they started beating him saying that he was a thief. The same does not hold any water viewed against the evidence on record and therefore the learned Magistrate was right in dismissing the same.

With regard to the defence mounted by the 2nd Appellant, the same is not believable. He did not explain how he ended up in the tea plantation and why he was beaten by the mob yet in his evidence he stated that he got a black out at Kathangariri town and he was left there. He also did not explain why the people beat him calling him a thief. It did not add up. I would dismiss the defence on record. For the foregoing reasons, the appeal is dismissed, both the conviction and the sentence are upheld.

It is so ordered.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

………………………. for the Respondent