[2015] KEHC 2065 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

HIGH COURT CRIMINAL APPEAL NO. 20 OF 2014

R.V.P. WENDOH AND J.A.MAKAU JJ

SIMON EKWAM………………… ……. ………………………APPELLANT

-V E R S U S –

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

(From the original conviction and sentence in criminal case no. 270 of 2012 of the Chief Magistrate’s court at Isiolo – J.M. Irura – Ag. P.M.)

JUDGEMENT

1. The Appellant SIMON EKWAM and another person were charged with robbery with violence contrary to Section 296(2) of the Penal Code. The other person was acquitted under Section 215 of the Criminal Procedure Code. The appellant was tried and convicted of the offence of robbery with violence and sentenced to death as prescribed in law.

2. The particulars of the charge was that on the 12th day of June, 2012 at around 7. 30 pm at Kiwanjani area in Isiolo county of the eastern province jointly with others not before court being armed with a dangerous weapon namely a knife robbed AYANAE ALEMU of his wallet containing cash money Kshs. 70,000/- his national identify card and a safaricom line valued at Kshs. 50/- all valued at Kshs. 70,050 and immediately before or immediately after the time of such robbery injured AYANAE ALEMU by stabbing him with the said knife on the head and his left hand.

3. The Appellant being aggrieved by both the conviction and sentence preferred this appeal setting out four grounds of appeal as follows:-

a. That the learned trial magistrate erred in law and facts in law and facts when he failed to note that no identification parade was conducted in respect of the case before court contravening police standing orders no. 46 which spellsclearlythat immediately after the arrest of a suspect anidentificationparade must bemade to identify the suspect.

b. That the learned trial magistrate erred in law and facts when he failed to note that no first report was reported by the complainant toconfirmthat I was oneof theattackers who robbed the complainant.

c. That the learned trial magistrate erredin law and factswhen he failed to note that no weapon neither ID card neither sim card nor Ksh. 70,000/- was recovered from the appellant to support his allegation.

d. That the learned magistrate erred bothin law and fact when he failed to noteandconsider his sworn defense.

4. We are first appellate court and as expected of us we have to subject the entire evidence adduced before the trial court to a fresh evaluation and analysis while bearing in mind that we neither saw nor heard any of the witnesses and have to give due allowance. We are guided by the Court of Appeal case which sets out the principles that apply on a first appeal. These are set out in the case of ISSAC NG’ANG’A ALIAS PETER NG’ANG’A KAHIGA V REPUBLIC CRIMINAL APPEAL NO. 272 OF 2005 as follows:-

“in the same way, a court hearing a first appeal (i.e. a first appellant court) also has a duty imposed on it by law to carefully examine and analyze afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of seeing the witnesses and observing their demeanor and so the first appellate court would give allowance of the same. There are now a myriad of case law on this but the well-known case of OKENO –v- REPUBLIC (1972) EA 32 will suffice. In this case, the predecessor of this court stated:-

“The first appellate court must itself weight conflicting evidence and draw its own conclusion(Shantilal M. Ruwala V Republic [1957] EA570. ).It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses (See Peters V. Sunday Post, (1958) EA 424)”

5. When the appeal came up for hearing the appellant relied on his written submission which he submitted to this court. He stated that he had nothing else to add. The appellant’s main grounds of appeal in his written submission are that the trial court did not evaluate the whole evidence and failed to consider the appellant’sdefence.

6. The State was represented by Mr.Moses Mungai, learned state counsel who strongly opposed the appeal. He submitted that there was overwhelming evidence against the appellant; that the case was one of recognition and the complainant knew the appellant before and both came from the same area; that the appellant a bodaboda operator was taking the complainant to his home and that the appellant and the complainant were attacked ; that the appellant was part of the gang.; that he had conspired with the members of the gang to rob the complainant;that after the robbery he was not found at the scene of robbery yet the complainant was injured. Mr. Moses Mungai submitted the ingredientsof an offence of robbery were proved. He submitted that the defence did not rebut the prosecution case. He submitted that the appellant ran away during the robbery but in his defence he said he took the complainant to the hospital. He urged that they are not shifting the burden of proof but the defence should be credible. He urged the appellant had money which he had been given by the attackers of the complainant and as such he submitted that the appellant was part of the gang which robbed the complainant. He added that the appellant did not report the incident to the police.

7. The appellant in response to the submissions by Mr. Moses Mungai, learned state counsel, submitted that he took the complainant to the hospital and the police station; whereby he told the police he was robbed by the people he did not know. He urged that if he stole from the complainant why didn’t the complainant not give the appellant’s name to the police.

8. The brief facts of the prosecution case are that PW1 Francis Ayanae Alemu on 12th June 2012 he sold his three bulls to PW3 Lawrence Ewoi at Kshs. 75000/-. He gave his wife Kshs. 3000/- to buy food for their children, used Kshs. 2000/- and remained with Kshs. 70000/- ; that at 6. 00p.m.he approached the appellant Simon, as they came from the same area to take him home with his bodaboda, which is reddish in colour but he told him it was not time to go home and he went away; that at 7. 00 p.m. the appellant returned at Miraa market with a different motorcycle which was red in colour. The complainant boarded the appellant’s motorcycle and they started their journey home; that Simon, the appellant rode towards Kiwanja ya ndege whereas they were supposed to go towards KawibiGarba direction; the complainant asked him why he had taken that route to which he replied that he had been called on phone by his friend and wanted to go there first and then go home;the complainant had no problem going there as the appellant was his neighbour and he knew him well; that they joined the road towards Kiwanja ya ndege and went past some buildings and up to a place where there is a long fence; that as they were proceeding, Simon the appellant herein made a telephone call and started speaking in Kimeru language to which the complainant asked the appellant why he was using a language that the complainant cannot understand and they reached where the people the appellant was talking with were. He switched off the motorcycle lights, started riding at a very low speed and as the appellant was negotiating a corner, the complainant was held by about three people who were armed with knives. He was cut on the forehead with a panga and stabbed on the hand while another hit his right leg; that by that time his face had been covered. He was robbed of his money, a wallet, identity card, his mobile phone and receipts; that after the complainant was held by the attackers he did not know what happened to Simon the appellant, and the motorbike; that after robbery the complainant did not find Simon or the motorcycle at the scene; that the complainant proceeded to a medical clinic at Isiolo township at the white house whereby his friend a watchman, PW4 Esunyan Lochuchu, called the complaint’s people back home. He was not treated at the clinic, however Lomale, took him to police station at Isiolo and thereafter to Isiolo District Hospital where he was treated and discharged; that the following day members of public gathered at the complainant’s home and the appellant was arrested. The complainant testified that the appellant knew he was going to sell his cows as he found the complainant on the way who informed him he had sold his cattle to Lawrence; the complainant testified that the appellant is not the one who took him to the clinic at Isiolo but one Lomale.

9. PW2 JOHN EKIRU testified that on 12th June 2012 at about 6. 00p.m.he was at Sokoni stage with Francis Eyane, PW1 waiting for vehicle to take them home but there were no vehicles; PW1, then decided to hire motorbike, KMCU 751Y make Skygo, red in colour, which PW2 identified as the one before the court. ; that it was being ridden by Simon Ekwam, the appellant; that after they left they proceeded towards Kiwanja ya ndege. PW2 took another motorcycle and proceed to Chimvi; that at about 10. 00 p.m. his wife woke himup and told him she had heard that Eyanae the complainant had been attacked; that the following day the appellant was arrested from his home in presence of PW2 and the motor cycle before court found with the appellant; that the complainant at that time was at his house and had bandaged head; whereas the appellant had no injuries; and that the complainant had reported that he had been attacked by the appellant.

10. PW3 LAWRENCE EWOI testified that on 12th June 2012 at about 9. 00 a.m. at Chumvi area he purchased three bulls from the complainant at Kshs. 75,000/- that the following morning he saw people gathered and heard that the complainant had been attacked. He went to the complainant’s house and found that he had injury on the head and legs. He did not speak to the complainant.

11. PW4 ESUNYAN LOCHUCHU a watchman at Lowasa’s place testified that on 13thJune 2012 at about 8. 30 a.m. he was outside the hospital gate when complainant came.He observed he had injuries on the head and hand. He went to see a doctor but there was none. PW4 was told by PW1 what had happened and he told him he had been attacked by thugs who robbed him of his money. PW4 called the complainant family members through his mobile phone.

12. PW5 GEORFFREY ARUKU testified that on 12th June, 2012 at about 7. 00 p.m. he met the appellant at the petrol station who asked him to assist him with his motorbike as his did not have headlights. He had known Simon, the appellant as an operator of bodaboda services at the stage; that his motorbike was black and Simba by make; that he was going to take the customers to Chumvi area. They agreed the appellant would return the motorcycle at 7. 00 a.m.; that PW5 rode appellant’s motorbike upto their home at SokoMjinga; that after he had given him his motorcycle he left the complainant in this case with the appellant as he borrowed his motorbike. He offered to pay PW5 Kshs. 300/- which he has not paid to date; that the following day the appellant did not return as agreed consequently PW5 demanded aride to the appellant’s home but on the way met the appellant pushing his motorbike in the company of KPR officer and he told him the motorbike had a puncture.; that the homeguard (KPR) told PW5 that the complainant was robbed and injured.He saw complainant who was seated by the roadside with injuries. PW5 identified the borrowed motorbike as the one before court; the motorbike had no damages. PW5 was told by PW1 that he was injured by the appellant.

13. PW6, No. 242912 APC ZABLON ATUTO testified that on 13th June 2012 at about 2. 00 p.m. he was at Isiolo District Central Division offices when one KPR with two others who included the appellant and the complaint told him PW1 was complaining that the appellant had robbed him. PW7 Peter Ekwau a Kenya Police Reservist testified that on 13th June 2013 at 7. 00 a.m.he was at home when he heard one Ekai a son of Ayanae Alemu calling him. He told him his father had been attacked the previous night and was at home. PW7 proceeded to complainant’s home and confirmed that the complaint had injuries. He also found Simon Ekwam who was said to have been with the complainant the previous night with motorbike Skygo Registration KMCV 751 Y red in colour. PW7 spoke to the appellant who told him he had told the attackers not to attack the complainant but only to rob him of his money; the appellant told PW7 he had kept Kshs. 10,000/- in certain shop in Isiolo town, he offered to take him to the shop but he showed them a closed shop.PW7 took the complainant to AP camp at Central Division. The Appellant cooperated with police and one Mugambi who was the 2nd accused at the lower court was arrested. PW1 identified the motorcycle the appellant had as Registration No.KMCV 751 Y which was before court as PMFI2.

14. PW8 KARAIYU JILLO, a Senior Clinical Officer at Isiolo Hospital produced a P3 form in respect of Francis Eyanae filled by Mohammed Dubo who he testified filled the same and that he was familiar with his handwriting and signature as prosecution exhibit 1. The nature of injuries were classified as harm; the complainant had deep cuts wound on the forehead, left upper hand, injury to the right knee and chest.

15. PW9 No. 79667 CPL MARK ARAO testified that PC Makau who was moving to Sarova Shaba for other duties was instructed to hand over the file inrespect of this matter to him and others; that the file was initially investigated by PC. Lucas Ngigi who has since left the police service; that the appellant had been charged as other witnesses testified; he testified as he took over the file he was handed over motorcycle registration no. KMCV 751Y Skygo which he produced as exhibit 2. He testified that investigations revealed that the complainant was robbed Kshs. 70,000/- wallet, identity card and sim card and in the process he was injured. He confirmed during cross-examination that the motorcycle before court was the one used during the robbery.

16. The appellant gave a sworn defence and called no witnesses. The appellant’s defence is that on 12th June 2012 he was called by Mzee Lokochina who asked him to take him to Chumvi area; that he put his (appellant’s) luggage on motorcycle and Lokochina told him he was waiting for someone. He told him he did not want to wait for long as his motorbike did not have headlights. He offered to take him to one Aspitari who was also operating bodaboda services. Mr. Aspitari said he was fearing to go to Chumvi area at night. They agreed to exchange their motorbikes and appellant got Aspitari’s motorbike and gave his to him. The appellant got motorcycle Reg.no.KMCV 751Y and gave his Reg.no. KMCQ 873C; that the appellant went to Mzee Lokochina and after staying at the stage for Chumvi area and Kiwanja for a while he told him it had become dark; that the Mzee Lokochina called the person who arrived and they started the journey. The appellant went to total petrol station,fueled the motorcycle and followed a way near Kiithe lodge which he did not know; that after a while Lokochina asked him to divert on the left side; that three people appeared at the front having something like a slasher; they ordered them to lie down which they did and asked them to remove what they had; the appellant had Kshs 400/- which he gave, the people then left and he did not know where the person who had the luggage went; that the appellant and the complainant then got up and appellant carried the complainant with motorcycle to the house where there is a clinic and found it locked as it was night; that the officer who was there asked him to take the complainant to the hospital; that they went to the hospital and the complainant was treated at 2. 00 p.m. afterwhich they proceed to Chumvi; that the following morning the complainant went to the appellant’s home at 7. 00 a.m.and asked him to take him to the hospital; that appellant went and found a Kenya Police Reservist to whom he narrated what had happened. Kenya Police Reservist took the motorcycle to elders after whichthe Kenya Police Reservist went for the appellant; and that the appellant was taken to AP Central.

17. The appellant on being cross-examined testified that the complainant did not ask him to slow down and divert and he was the one who was riding and not the complainant; that they were attacked by three people and he was not injured as he was wearing a jacket; that motorcycle fell down but was not damaged; that they were both robbed but he did not make any report of robbery; that the officer refused to book his report but asked him to take the complainant to the hospital.

18. We note from the evidence of the complainant that PW1, was alone at the time of the commission of the offence. The prosecution case is therefore based on evidence of a single witness and circumstantial evidence.

19. In the case of Joseph Labo Ole Toroka v Republic Criminal AppealNo. 708/1986 (Nairobi), the court laid down the basic principle to be considered when the issue of identification by a single witness is in issue. The Court of Appeal stated as follows:-

“We accept the recognition and identification are quite different concepts but this alone cannot absolve a trial court from the need to warn itself of the danger of identification by a single witness. It is possible for a witness to believe quite genuinely that he had been attacked by someone he knew well and yet still be mistaken. So the possibility of error is still there whether it be a case of recognition or identification. In this particular case, as the trial magistrate did not go on record as warning himself, there is clearly no basis for the conclusion arrived at by the High Court that he must have borne the case of Abdalla Bin Wendo –vs- R (1953) 20 EACA166,where the Court of Appeal for Eastern Africa said at P.168-

“The learned judge was impressed by the demeanor of Magondo in the witness box and thought him anhonest witness. We accept this assessment unhesitatingly but on an identification issue a witness maybe honest yet mistaken,and may make erroneous assumptionsparticularly if he believes that what he thinks is likely tobe true…….. subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony ofa single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especiallywhen it is known that the conditions favouring a correct identification were difficult. In suchcircumstanceswhat isneededis other evidence, whether it be circumstantial ordirect,pointing to guilt. From which a judge or jury can are reasonably conclude that the evidence of identification although based in the testimony of a single witness, can safely be accepted as free fromthepossibility of error.”

20. In the instant case we have found the conditions for recognition were favourable. The complainant met the appellant at Sokoni stage at 2. 00 p.m.and talked to him more than once. He knew the appellant as he is his neighbour and even knew him as a bodaboda operator; that they left together at 7. 00 p.m. PW1’s evidence was corroborated by PW2 who stated that on 12th June 2012 at about 6. 00 p.m. He was at Sokoni stage when he saw the appellant being asked by the complainant to carry him in motorbike KMCV 751 Y make; Skygo red in colour. That they proceeded to Kiwanja ya ndege. The appellant in his defense did not deny at the time of the robbery he was not with the complainant. The appellant did not testify that after he left with the complainant that he dropped him anywhere before the robbery. The complainant had known the appellant since his childhood. In view of the foregoing, we find the evidence of a single prosecution witness acceptable as free from possibility of error.

21. In view of the evidence on how the robbery occurred, we feel in the circumstances what is needed is other evidence whether, it be circumstantial or direct, pointing to the guilt of the appellant from which this court can reasonably conclude that the evidence of recognition and/or identification based on the testimony of a single witness, can safely be accepted as free from possibility of error. In the case of Margaret Wamuyu Wairioko v Republic Cr. Appeal No. 35 of 2005 it was stated that circumstantial evidence is very often the best evidence. However in the case of Republic v Kipkering Arap Koske & another (1949) 16 EACA 135on circumstantial evidence it was stated:-

“In order to justify the inference of guilt, the inculpatory factsmust be incompatible with the innocence of the accused,and incapable of explanation upon any otherreasonable hypothesis than that of his guilt. Theburden of proving facts which justify thedrawing of this inference from the facts to theexclusion ofanyreasonable hypothesis of innocence is on the prosecution,and always remains with the prosecution. It is a burden which never shifts to the party accused.”

22. In the case of Abanga alias Onyango v Republic Cr.ANo.32 of 1990 (UR) at page 5 the Court of Appeal stated:-

“It is settled law that when a case rests entirely on circumstantial evidence,such evidence must satisfy three test: (i) the circumstances from which aninference of guilt is sought tobe drawn, must be cogentlyand firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused; (iii) the circumstances taken cumulatively, should forma chain so complete that there is no escape from the conclusion that withinall human probability the crime was committed bytheaccused and none else.”

23. The complainant’s evidence is that the appellant saw him taking his three bulls to the market and he testified he had told him he had sold the same; that the complainant requested the appellant to take him home at 2. 00 p.m. and he told him it was not yet time; that the appellant knew his motorbike had no headlights and could not travel at night hence he arranged to exchange his motorbike when it became dark with motorbike KMCV 751Y. That when he left at 7. 00 p.m.he took the wrong route, that leads to Kiwanja ya ndege instead of the route to Kambi Garba direction. He told the complainant he had been called by a friend; that when they had gone past some buildings and went up to a place where there is a long fence, the appellant received a call and started talking in kimeru language which the complainant could not understand. The complainant asked him why he was speaking in a language which he could not understand and by which time they had reached where the people he was talking with were.He switched off the lights of the motorcycle and started riding very slowly as he was negotiating a coner, the appellant was held about by three people who were armed with knives, he was cut on the forehead and stabbed with panga. He was robbed; that after he was robbed he did not see the appellant and the motorcycle. The complainant went to medical clinic alone and was assisted by PW4 who called his family and informed them of the attack. Lomalal took the complainant to the hospital where he was treated and discharged. The appellant claimed he was robbed Ksh. 400/-. The appellant avered that after the incident he took the complainant to the hospital and then proceeded to Isiolo Police station where the complainant report was booked. That he took the complainant to the hospital at about 2. 00 p.m. and proceeded to Chumvi. The appellant’s evidence was not accepted by the trial court. We have evaluated his evidence in light of the evidence of PW1, PW4 who testified that the complainant went to the hospital alone; PW6 who testified the first report to police was made on 13th June 2012 when KPR took the appellant to the police station in the company of the complainant. The appellant did not notify police of the robbery during the night the robbery took place nor did he bother to inform the family of the complainant who are his neighbours of the robbery.

24. We have considered the circumstantial evidence relied upon by the prosecution and in our minds are satisfied that the prosecution did prove and passed the three tests of circumstantial evidence. We are satisfied the circumstances from which an inference of guilt is sought to be drawn has cogently and firmly been established. The circumstances are of definite tendency unerringly pointing towards guilt of the appellant and that the circumstances taken cumulatively form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

25. The appellant contended that no report was made to confirm that he was one of the robbers. We have very carefully considered the evidence and indeed find that the complainant in his evidence he gave the name of the attackers including the appellant to PW2,PW5,PW6,PW7, PW9and elders. We therefore find that the first report of the complainant gave the name of the appellant as one of the persons who robbed him. We find no merit in that ground of appeal.

26. The appellant faults the trial court for failing to consider his defence. We have carefully considered the trial magistrate judgment and have carefully evaluated the appellant’s defence and have no doubt in our mind the learned trial magistrate evaluated the whole evidence and came to a conclusion that if the appellant was not part of the gang he should have made a report of the robbery with police. In his defence and in cross-examination he was unable to explain why he had not gotten any single injury during the said robbery. The trial court rejected the appellant’s defence and found that he was part and parcel of the robbers. The trial court concluded by finding that the appellant was unable to exonerate himself from being an accomplice of the robbers; the trial court further found that the appellant did not during cross-examination of the complainant raise the issues raised in his defence and court found the whole defence as an afterthought. We evaluated the whole evidence and find the appellant’s defence was carefully evaluated and considered. We find the issues raised in the appellant’s defence were not raised during cross-examination and as such we term the defence as an afterthought. We therefore find no merits in the appellant’s defence.

27. The appellant in his appeal submitted that the ingredients of robbery with violence were not satisfied in the charge sheet. We need to state that the offence of robbery with violence under Section 296 (2) of the Penal Code has three distinct ingredients which are in our view as follows:-

1) The offender is armed with any dangerous or offensive weapon or instrument; or

2) The offender is in company with one or more other persons; or

3) 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.

28. PW1 testified he was cut with a panga and sustained injuries which PW8, the clinical officer confirmed by production of exhibit 1. We appreciate that though this was not a case of assault, medical report should be produced where injuries are sustained by the victim of robbery with violence. In addition to the above, the appellant was in company of one or more persons and immediately before or immediately after the time of robbery, the offenders used personal violence against the complainant. We are therefore satisfied the ingredients of robbery with violence were proved to the required standard as per Section 296 (2) of the Penal Code.

29. We are therefore satisfied that there was positive, reliable and correct recognition of the appellant by a single witness in this case and was safe to found a conviction. We accordingly uphold the conviction and confirm the sentence that was imposed by the trial magistrate.

READ,SIGNED AND DELIVERED AT MERU THIS 24TH DAY OF SEPTEMBER 2015.

R.V.P WENDOH J.A. MAKAU

JUDGE JUDGE

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