[2007] KEHC 3757 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

(CORAM: OJWANG & DULU JJ.)

CRIMINAL APPEAL NO. 41 OF 2006

BETWEEN

SIMON KANG’THE.............................APPELLANT

-AND-

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

(An appeal from the Judgement of Senior Resident Magistrate L.W. Gicheha dated 25th January, 2006 in Criminal Case No. 2348 of 2005 at the Thika Law Courts)

JUDGEMENT OF THE COURT

The appellant herein, Simon Kang’ethe, faced the charge of robbery with violence contrary to s.296(2) of the Penal Code (Cap.63). The particulars were that the appellant, on 29th April, 2005 at Swani Village in Thika District, in Central Province, while armed with a panga, robbed Kelvin Muturi Kibe of a bag containing two bed sheets, one pair of trousers, one novel, one pair of shoes, one shirt, three underwears – all valued at Kshs.2,950/= ? and at, or immediately before the time of such robbery, used personal violence against the said Kelvin Muturi Kibe.

PW1, Kelvin Muturi Kibe, a student at Gathugu High School in Embu, was coming from school at 7. 30 pm on 28th April, 2005. He took a motor vehicle, which dropped him off at a place known as Kihiu Mwiri. When he was some 5 metres from the road, someone came along with a panga, and hit him on the left shoulder. The intruder pushed PW1 into coffee bushes, and demanded money from him. When PW1 said he had come from school, the intruder demanded his bag. He took from PW1 this bag which contained personal effects; he also took Kshs.200/= from PW1. He then ordered PW1 to go away and not look behind.

PW1 went up to Mitubiri Chief’s office, and reported the robbery incident. Some days later, a Policeman went for PW1, and told him to come with the officer, to see certain stolen effects which had been recovered. The two went upto the home of one Mburu; and there, PW1 found one of his bed sheets; it had PW1’s name written on it. Mburuwas then arrested; and another person, Kang’ethe, the man who had attacked and robbed PW1 of his effects, was also arrested. Kang’ethe then led PW1 and the Police officer to the home of one Maina(PW2); and there, PW1’s stolen bag was found. In the said bag was found one bed-sheet, like the one which had just been recovered from Mburu’s house.

PW1 had known the appellant herein prior to the robbery incident. PW1 had previously gone visiting in the appellant’s neighbouring village; and he had recognised the appellant at the time of the robbery incident, and had at the time put to the appellant a question: What’s the problem? At the time of the robbery, there had been moonlight; and PW1 had noticed that the appellant was wearing a black hat.

When the bag was found in Maina’s house, it had PW1’s blue bed-sheet, as well as PW1’s novel, and PW1’s shoes, and PW1’s towel, on which PW1’s name was written. PW1, however, did not find his trousers and his underwear, in the bag when it was recovered.

On cross-examination by the appellant, PW1 testified that he had been alone, walking along the road, when the robbery incident took place. PW1 confirmed that he had been robbed on a moon-lit night, and that some of his effects had been found in the house belonging to the appellant and Mburu. PW1 said he had identified the appellant to the Police officer; and it is on that occasion the appellant led PW1 and the Police officer to Maina’s house, and showed them where PW1’s other stolen items were kept. PW1 said the appellant has a scar on his face, and PW1 had quite easily recognised him as the robber of the material night. After the attack, PW1 was kept down, lying on his back; and he said that, in this posture, he had been able to look at the attacker, and to confirm that it was the appellant herein. He had first seen the appellant from a distance of five metres; but he had not expected that such a robbery attack would take place; the appellant had emerged from the bushes. While at that distance, the appellant had concealed the panga, which he drew only when he came close to PW1. PW1 had been given first-aid following the attack; and it was on the following day that he went to the Administration Police camp, to make a report.

PW2, Joseph Mburu Maina, testified that he is a student at Swani Primary School. He was at home on Saturday, 30th April, 2005 at 8. 00 p.m. when he saw the appellant herein come home with a small bag. Kang’ethe, the appellant, is PW2’s cousin. He left the bag at PW2’s home saying he would come for it later; and he took out one bed-sheet from the said bag, and gave to PW2. Four days later, PW2’s Head Master came to inform him that he must go home from school, as there were Police officers there who wanted to see him. When Pw2 got home, he was asked the source of his newly-acquired bed-sheet. PW2 said the appellant had given him the bed-sheet. They went to the Police station, and there, Kang’ethe revealed that the stolen bag and some of the contents were at Maina’s home. Kang’ethe led the Police to Maina’s house and, truly, the bag, and some of its original contents, were found: shirts, bed-sheets, shoes, a novel, a towel.

On cross-examination, PW2 said he had not alerted anybody about the goods in question, because the appellant had said they were his. PW2 testified that the appellant had not kept the bag at his own home, which is a very short distance from PW2’s, but he had chosen to keep the stolen bag at PW2’s place. The appellant had kept the bag at PW2’s place in the morning, and took it away in the evening after donating a bed-sheet to PW2.

PW3, Lucy Muthoni Kiragu, is a teacher at Swani Primary School. On 29th April, 2005 she had been waiting for her son, coming from school in Embu, at about 8. 00 p.m. Her son knocked on the door, and came in, shivering in shock. He told her that he had run into an attacker, wielding a panga, who had grabbed all his belongings. PW3 took her son PW1 to the nursery, for medical attention and PW1 was given an injection by a nurse. The incident was reported to the Administration Police camp the following day.

During the following week, some of PW1’s stolen items were found in the house of a Standard 8 pupil from the school where PW3 was a teacher, Swani Primary School. So PW3 returned to the A.P. Camp for help. The Administration Police Officers got the said Standard 8 pupil (PW2) to return to his house, from school, to help with investigations. In the said pupil’s house, the officers found one bed- sheet belonging to PW1. The Administration Police officers, PW1, PW2 and PW3 then went to the said officers’ post, where PW3 identified her own inscription of PW1’s name on the recovered bed-sheet. The appellant was then placed under arrest, and taken to Ngati Police Post. PW3 identified in Court the several items belonging to her son (PW1) which had been stolen on the material evening; these included a bag, a towel, shoes, and a shirt. PW3 had asked PW1 if he could identify the man who had robbed him (PW1) of his belongings; and PW1 said “he could [identify the suspect], as he sees [the suspect] in the village, and [the suspect] had a mark on the face.”

PW4, Police Force No. 45011, Police Constable Benson Mbugua of Thika Police Station, testified that he had been attached to Ngati Police Post at the material time. He was on duty on 5th May, 2005 when A.P.C. Japheth Ndani (PW5) brought the appellant along, on information that the appellant had robbed the complainant of his belongings. PW4 re-arrested the appellant, and took charge of the exhibits linked to the alleged incident of robbery; these exhibits were: a pair of black shoes, a novel, a towel, a shirt, two bed-sheets, and a bag. The appellant was subsequently charged with the offence of robbery with violence.

The arresting officer, PW5 (No. 94018493 A.P.C. Joseph Ndani testified that he was serving at Mitubiri at the material time. He received PW1’s complaint, that the previous night (29th April, 2005), as he was going home from school, at Kahiu Mwiri, he was accosted by a person who was armed with a panga, and who took his bag, as well as his Kshs.200/=. After conducting investigations, PW5 found two bed sheets and a towel, in the house of one Maina. PW5 also recovered a bag and a novel in the same house, and these were some of the items reported stolen from the complainant, on the material day. It was the appellant himself, who had led PW5 to PW2’s house where the stolen items were recovered.

When the trial Court ruled that he had a case to answer, the appellant informed the Court he had chosen to remain silent. The Court gave him time to think through his defence option, and more than a month later, he changed his preference, and opted to make an unsworn statement.

In his statement, the appellant said he had woken up from his sleep at 6. 00 a.m., on 4th May, 2005 and then went to work. He remained at work (the nature of which was not specified) until 1. 00 p.m., when he returned home. He began cleaning his compound and, while he was doing so, he heard screams of people. The appellant said he had then taken his panga, and gone up to the road, to the place where the screams were coming from; but a Policeman then asked him about the weapon he was carrying, and arrested him. The Police took the appellant to the Police station, and he was later charged with the offence, even though he knows nothing about that offence.

The learned Senior Resident Magistrate made certain findings of fact which led to a finding of guilt. The following passage appears in the judgement:

“[The] accused is charged with [the offence of] robbery with violence contrary to section 296(2) of the Penal Code. For the prosecution to prove this case beyond reasonable doubt, it must be established that on 29th April, 2005, while armed with a panga he robbed Kelvin Muturi of items in the charge sheet, and thereafter used personal violence.

“Firstly it is not in dispute that the robbery did take place. PW1 reached home [and] told his mother, PW3 [about the robbery], and they reported to PW5 on 30th April, 2005. The stolen items were later recovered. I therefore have no reason to doubt that the robbery [took place].

“Secondly, I also find no reason to doubt that the …assailant was armed and he did use personal violence to intimidate PW1 to release his possessions.”

We would hold that basically, the learned Magistrate stated the applicable law correctly, save that violence as contemplated in s.296(2) of the Penal Code (Cap.63), may take place at, or immediately before, or immediately after the time of the theft. We are, however, in agreement with the trial Court, that the violence in question did accompany the transaction of theft; and therefore it was violence such as must qualify the deprivation to which PW1 was subjected on the material evening, as robbery with violence.

On the ultimate question, “whether the accused was the person who attacked PW1”, the learned trial magistrate found as follows:

“PW1 stated that he was able to identify his attacker, [and] he passed this information to his mother (PW2); but it appears he did not know the name of the accused, as his mother sent [pupils] to [search] for the stolen items, [without stating] at whose place [these items were to be sought]. [PW1] was later able to recognise [the appellant] when [he] went with the AP to arrest [the appellant]…After PW3 sent her students to trace her son’s stolen items, [the search] led to PW2’s house, where one of the bed sheets was recovered. PW2 then led to the accused’s arrest after he alleged that the accused had given him the [bed-sheet]. [The accused] then led PW1, PW2 and PW5 to his brother Maina’s house, where the rest of the items were recovered…PW2’s [testimony] appeared honest…”

The logical thread in the foregoing passage, as a process of discovering the culprit, cannot, in our view, be questioned. The learned Magistrate made that analysis in the context of the defence proffered, and stated:

“I have considered his defence and I find that it is an afterthought, as there is enough evidence from the witnesses, that the accused was arrested by PW5 after PW2 led them to him.

“I am, therefore, satisfied that a charge of robbery with violence contrary to section 296(2) [of the Penal Code] has been proved against the accused, and the accused is accordingly convicted.”

Upon being sentenced to death, the appellant lodged this appeal, contending that he had not been sufficiently identified as the culprit; that the identification evidence of a single witness was uncorroborated; that no identification parade was conducted to identify him as the culprit; that a first report should have been made by the complainant describing him as the suspect; that the exhibits had been recovered in the possession of PW2 who was an accomplice.

Learned State Counsel Ms. Gakobo urged that at the time of the robbery in question, there was moonlight, and thus, visibility was good; and so PW1 had properly identified the appellant as the attacker. The appellant was a man living in the next village, and the complainant had seen him before the material evening. The standard of identification achieved by PW1, counsel urged, was that of recognition, and so, was that much more reliable.

Counsel urged that, there had been still further identification of the appellant as the robber, when, following the robbery incident, the appellant left PW1’s stolen bag at PW2’s home. The stolen effects clearly bore insignia showing them to be the property of PW1, and they were properly identified. Counsel urged that the trial Court, in its demeanour-assessment, had held PW2 to have been an honest witness and not an accomplice as was contended by the appellant.

It is not possible, in our view, to doubt the truthfulness of PW1’s testimony that he had been attacked and robbed by only oneperson, on the material evening. We accept as true PW1’s testimony that it was a moon-lit night, and that he was able to see the one person who attacked him, as the appellant herein. We would not attach much significance to the fact that PW1 did not identify his attacker by name; it is enough, that the items robbed from him were found with PW2, and PW2 who the trial Court assessed as a truthful witness, identified the appellant as the person who had possession of the stolen goods, following the robbery incident. Where did the appellant get those goods from? Those goods were stolen; and so he was the thief who stole them. The appellant was the robber on the material night.

In our judgement, proof was adduced beyond reasonable doubt, that the appellant was the robber who stole PW1’s goods on the material evening, in conditions of violence. The appellant was, therefore, quite properly convicted, and duly sentenced by the trial Court.

We dismiss the appeal, uphold the conviction, and affirm sentence.

Orders accordingly.

DATED and DELIVERED at Nairobi this 6th day of November, 2007.

J.B. OJWANG

JUDGE

G.A. DULU

JUDGE

Coram: Ojwang & Dulu, JJ.

Court Clerk: Tabitha Wanjiku & Erick

For the Respondent: Ms. Gakobo

Appellant in person