[2015] KEHC 7914 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 132 OF 2014

SIMON KIBARU KARANJA….APPELLANT

VERSUS

REPUBLIC………………….RESPONDENT

(Being an appeal from original conviction and sentence contained in the Judgment of Hon. E. Michieka (Principal Magistrates) at Senior Principal Magistrate’s Court at Kikuyu Criminal Case No. 9 of 20103 delivered on 16th July, 2014)

JUDGMENT

The Appellant was charged with two counts of offences of robbery with violence contrary to Section 292(2) of the Penal Code and assault causing actual bodily harm contrary to Section 251 of the Penal Code. In the first count, it was alleged that on 22nd June 2013, at Zambezi Trading Centre in Kiambu County, jointly with others not before court while armed with dangerous weapons namely, pangasand bottles robbed Peterson Magati Onyangore of cash Ksh.350/- and immediately after the time of the robbery used actual violence to the said Peterson Magati Onyangore.

The particulars of the second count were that on 22nd June 2013, at Zambezi Trading Centre in Kiambu County, jointly with others not before court unlawfully assaulted Sosthen Ombati Nyabongoye thereby occasioning him actual bodily harm.

The prosecution called 4 witnesses. The Appellant gave an unsworn testimony in his defence and did not call any witness. At the conclusion of the trial, he was convicted on both counts and sentenced to suffer death in respect of the first count and was discharged under Section 35(1) of the Penal Code in respect of the second count.

Dissatisfied with the finding of the trial court, the Appellant appealed against both the conviction and sentence. In his Amended Grounds of Appeal filed on 27th July 2015, he raised six grounds of appeal. We have summarized these grounds as follows: Firstly, that the Appellant’s right to a fair trial was violated in that he was not supplied with witness statements and could not conduct his defence satisfactorily. Secondly, and consequently, that the evidence of PW1, 2 and 3 was admitted in total violation of the Constitution having been admitted without the statements. Thirdly, that the trial Magistrate erroneously relied on the evidence of identification under difficult circumstances without warning himself on the dangers of relying on such evidence. Fourthly, that the trial Magistrate erred in shifting the burden of proof to the Appellant in finding that the defence required corroboration.

In his written submissions, the Appellant stated that he was prejudiced since he was not availed with the witness statements despite having made several requests. As such his right to a fair trial under Article 25 (c) and 50 (2) (j) was violated. In this respect, he faulted the trial Magistrate for proceeding with the evidence of the prosecution witness, when the prosecution had not complied with the court’s orders. Further, the evidence so admitted violated Article 50(4) of the Constitution. He stated that he had been willing to meet the cost of the witness statements; thus, there was no justification as to why they were not supplied to him.

With regard to the evidence of identification, the Appellant submitted that the trial Magistrate failed to consider the prevailing conditions at the time of the alleged attack. Furthermore, the attacker was not known to the witnesses before.He challenged the credibility of the testimonies of PW1 and PW3. He submitted that it was not believable how PW1 could have identified the person who attacked him from behind yet he did not recognize any of the others who were in front of him. Again, it would not have been possible for PW3 to have single-handedly overpowered the ten attackers. He further submitted that the trial court erred in finding that his defence ought to have been corroborated.

Learned state counsel, Mr. Muriithi for the Respondent conceded to the appeal on the ground that the Appellant was not supplied with witness statements and was therefore prejudiced in his ability to cross-examine the witnesses. He added that even though it was said that the Appellant was arrested at the scene, there was contradiction in the testimonies of PW1 and PW2. He added that it was not possible for PW1 to have held on to the Appellant whilst he was being attacked by 10 people. He submitted that there was no sufficient evidence to support a conviction.

Even though the Respondent has conceded to this appeal, we are nevertheless duty-bound to reconsider the evidence afresh and arrive at our own independent conclusions. See Okeno v Republic (1972) EA, 336.

We first address ourselves to the issue as to whether or not the Appellant’s right to a fair trial was violated by failure of the prosecution to supply to him with copies of witness statements. Article 50 of the Constitution guarantees an accused person the right toa fair trial. Under Sub-Article 50 (2),the right to a fair trial includes the right to:

(b) to be informed of the charge, with sufficient detail to answer it;

(c) to have adequate time and facilities to prepare a defence;

(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;

(k) to adduce and challenge evidence…”

It is gain said that an accused person should be furnished with the witness statements so that he able to challenge the prosecution’s case and prepare for his defence. The onus is on the prosecution to supply the accused with the witness statements. In the case ofJuma v Republic [2007] EA 461 it was heldthus:

“We hold that the state is obliged to provide an accused person with copies of witness statements and relevant documents. This is included in the package of giving and affording adequate facilities to a person charged with a criminal offence…”

Further, in the case ofThomas Patrick Gilbert Cholmondeley v RepublicCriminal Appeal No. 116 of 2007 [2008] eKLR,the Court of Appeal stated:

“We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under Section 77 of our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items. If for any reason the prosecution thinks it ought not to disclose any piece of evidence in its possession, for example, on the basis of public interest immunity, they must put their case before the trial judge or magistrate who will then decide whether the claim by the prosecution not to disclose is or is not justified.”

An examination of the trial Court’s records shows that as soon as the Appellant took his plea on 25th June 2013, the court ordered that he be supplied with witness statements at his cost. The trial substantively took off on 31st July 2013 when PW1, PW2 and PW3 testified. On 21st August 2013, when the court allowed for the release of the Appellant on bond, the court made a further order that the Appellant be supplied with witness statements at his own cost. On these two occasions, it is not clear from the record whether these orders were made on the application of the Appellant or by the trial court on its own motion. On 25th September 2009, the Appellant indicated that he had not been supplied with witness statements, and the court directed that the statements be supplied. The trial proceeded on 9th April 2014 when PW4 testified. Thereafter, the Appellant was put on his defence. He gave his unsworn testimony in court on 4th June 2014 and did not call any witness.

No reasons were given as to why the witness statements were not supplied to the Appellant. These requests were not followed up and the trial proceeded without the Appellant having the benefit of the witness statements. It is not possible to dismiss any possibility of the Appellant having being prejudiced by failure to supply him with witness statements. The prosecution failed in its duty and the trial court erred in failing to ensure that the Appellant was accorded a fair trial.

On whether the charges against the Appellant were sufficiently proved, the Appellant challenged the evidence of identification by the prosecution witnesses. PW1, Peterson Magati testified that he was attacked at about 9. 00 p.m. by 10 people who pounced on him. He stated that the Appellant grabbed his neck and hit him with a bottle on his forehead from behind while the others frisked his pockets. He stated that there was security lighting nearby. The witness said that he held on his attacker until the members of the public came to his rescue. PW3, Sospen Ombati testified that he was in the club when he heard PW1 shouting. When he walked outside, he saw PW1 being attacked by the about 10 people. He intervened and grabbed one of the attackers who struck him with his fists while the others fled.

The theory that was advanced by the prosecution is that even through the attacker was not known to PW1 and 3, he was apprehended by PW3 who rescued PW1 until the police arrived and arrested him. We however, take note that the arresting officer did not testify. The only evidence available is that of PW4, the investigating officer who stated that he was allocated the case and recorded the witness statements. He was not involved in the Appellant’s arrest. The absence of the arresting officer leaves a gap in the prosecution case. There is no information as to whether the person allegedly arrested at the scene was the same person charged with the offences in question. That piece of evidence could only have been filled by the arresting officer. Without that piece of evidence, the prosecution evidence falls short, more so because the attack took place in the night, in conditions that were not ascertained to have been conducive for a positive identification. The chain was broken by the absence of a crucial witness. There was need for clarity on the circumstances leading to the arrest of the Appellant, particularly in light of the defence advanced by the Appellant. It was the Appellant’s defence that he was accosted and beaten by a mob as he left the same club where PW1 and PW3 had been. PW4 indicated that he visited the scene and that the Appellant had been beaten by a mob. The arresting officer would have therefore shed more light on the circumstances surrounding the Appellant’s arrest. It was the duty of the prosecution to prove the charges against the Appellant. That duty does not shift to the Appellant and it was in error for the trial Magistrate to conclude that the Appellant’s defence was not corroborated and that he was the culprit. In the circumstances, it was appropriate for counsel for the Respondent to concede to this Appeal.

In the upshot we find that the prosecution did not prove the case beyond all doubts. The appeal is meritorious. We quash the conviction and set aside the death sentence. We order that the Appellant be forthwith set free unless heis otherwise lawfully held.

DATEDand SIGNEDthis 22nd day of October, 2015.

L. KIMARU

JUDGE

G. W. NGENYE – MACHARIA

JUDGE

In the presence of:

Appellant in person

M/s Aluda for the Respondent