[2010] KEHC 1651 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU

Criminal Appeal 23,20,21 & 22 of 2009

SIMON MWANGI MWATHI………….……..1ST APPELLANT

DAVID MOGAKA MAKORI………………...2ND APPELLANT

JAMES MUREITHI KIMOTHO…………....3RD APPELLANT

KEN GITHU WACHIRA…………….……...4TH APPELLANT

VERSUS

REPUBLIC……………………………………..RESPONDENT

(An Appeal from original conviction and sentence in Nyahururu

S.P.M.CR.C.NO.3460 of 2007 by Hon T. M. Matheka, Ag. Principal

Magistrate, dated12th January, 2009)

JUDGMENT

The four appellants whose appeals were consolidated before the hearing were charged jointly with a 5th person before the court below with four courts of robbery with violence contrary to section 296(2)of thePenal Code.They were tried and convicted but the 5th suspect was acquitted for lack of evidence.The appellants were not lucky and were sentenced, upon conviction to the mandatory death sentence.They were aggrieved and preferred this appeal citing various grounds which may be summarized as follows:

i)that conditions for accurate identification were difficult

ii)that the identification parade was flawed

iii)that the prosecution evidence was inconsistent

iv)that the case against the appellants was not proved beyond doubt

H.C.CR.A.NOS.20, 21, 23 & 23/2009

v)that failure to call Peter Kabiru as a witness was fatal

vi)that failure to call arresting officer(s) in respect of some of the appellants was fatal

vii)that the learned magistrate erred in failing to consider the defence of the appellants

viii)that the 3rd appellant, James Mureithi Kimotho’s constitutional rights under section 72(3) were violated

Learned counsel for the respondent supported the conviction on the ground that there was sufficient evidence of identification of the appellants.

Being the first appellate court, before we consider those grounds and submissions, we are enjoined to re-evaluate the evidence on record in order to arrive at our own independent conclusion bearing in mind that we did no see or hear the witnesses.See Soki Vs.Republic (2004) 2KLR 21.

The evidence presented before the trial court may be summarized as follows:

On the night of 25th/26th April, 2007 a gang of between four (4) and eight (8) member struck a family at Kahuruko Trading Centre, Nyandaruarobbing them of cash and personal effect and also inflicting bodily injuries.

H.C.CR.A.NOS.20, 21, 23 & 23/2009

P.W.1, Samuel Mitabo Muraguri (Samuel)and his wife, P.W.2, Pauline Ngina Wangondu were in their house sleeping when at about2a.m.they heard their dogs barking.Samuel took a

torch, opened the door, flashed the torch light and saw eight (8) people.When he realized that the people were up to no good, he quickly retreated into the house and locked the door.Using stones, the robbers broke the door and 3 of them entered the house.Samuel and Pauline were beaten senselessly and robbed of mobile phones plus clothes and cash.Thereafter, the attackers left.

Another victim P.W.3, Ruth Njeri (Ruth) narrated how on that very night, the door to her house was forcibly opened by robbers demanding to be given money.They ordered her to take them to her mother-in-law, P.W.5, Anne Wambui (Anne).She complied.At Anne’s house, four (4) of the gang members robbed Anne of cash and 2 watches.While still harassing Anne and Ruth, there were screams from outside which scared the robbers away.The screams were from Samuel and Pauline, a son and 2nd daughter-in law to Anne, respectively.

A report was made to the police and the victims rushed to the

hospital for treatment.Investigations were immediately launched and

five suspects including the four (4) appellants arrested.An identification parade was conducted in respect of 3 suspects.

The 1st appellant who was the 2nd accused person at the trial gave an unsworn statement in which he blamed his arrest and

H.C.CR.A.NOS.20, 21, 23 & 23/2009

subsequent arraignment in court to P.C. Kimolo (P.W.7).That P.C. Kimolo owed him some money which he did not intend to pay back.When the 1st appellant demanded the repayment, P.C. Kimolo locked him up in the cells.He was eventually charged with the offence of robbery, the details of which he did not know.

The 2nd appellant blamed his woes on Anne’s other son, Peter Kabiru, who did not approved of the relationship between the 2nd appellant and a lady called Esther Njoki.Peter Kabiru using P.C. Kimolo had the 2nd appellant arrested and charged with the offence in question.

The 3rd appellant blames his problems on Cpl. Hassan who demanded Kshs.300/= from him.When he told him that he did not have the money, Cpl. Hassan placed him in the police cells for four (4) days and eventually had him charged with the offence in question.

Finally the 4th appellant’s evidence was that Samuel caused his arrest as he (the 4th appellant) had a relationship with his (Samuel’s) daughter, Anne Wambui.

The learned trial magistrate considered this evidence and found that the prosecution evidence was overwhelming; that the robberies in question were committed by the appellants, convicted them and as we have stated, sentenced them to death.

This appeal turns on the question of identification and we shall endeavour to consider the evidence of each eye witness in this regard

H.C.CR.A.NOS.20, 21, 23 & 23/2009

and the police identification parade.It is not denied that the robbery occurred late in the night between 12 mid-night and2a.m.

According to Samuel, he was able to identify the robbers using a torch and moon light when he opened the door to find out why the dogs were barking.He saw eight people and confirmed that they were known to him, identifying the appellants and the accused person who was acquitted; that they are from his village; that upon reporting the incident, he told the police that he had been attacked by people known to him; and that he was able to pick them out at the identification parade.He also confirmed that there was no light inside his house.

Three issues arise from this evidence.Samuel was only able to see the assailants with the aid of torch light and also the moonlight.What he did not tell the court was how bright the torch and moonlights were; how far from the robbers he was standing while flashing the light and how long he watched them.

Secondly, the first report to the police was made by Peter Kabiru and not Samuel.Peter reported, according to the Occurence Book, that the attackers were not known.The said Peter Kabiru was not called to testify.The other issue is, if Samuel knew the appellants and was able to identify them being village mates, why did he not supply the police with their names and why were they not arrested the following day?We may further ask why was an identification parade necessary for persons who had been recognized?We

H.C.CR.A.NOS.20, 21, 23 & 23/2009

conclude on this point that the victims of this unfortunate incident were attacked by people unknown to them.

We turn to the evidence of Pauline.It was her evidence that she was able to see 1st appellant from a mirror reflection and the torch lights.Again we have our doubt as to the credibility of this piece of evidence. The witness recorded her statement immediately but failedto mention that she could identify one of the robbers.She was only told of the 1st appellant’s name after the identification parade.The identification parade itself was flawed as confirmed by Pauline’s evidence that after some suspects were arrested, she was called to the police station where she saw the 1st appellant a few days before the parade.That was irregular as a witness is expected to see the suspect only at the identification parade.

The evidence of Ruth is equally incredible in so far as identification is concerned.According to her, she was also only able to see the 1st appellant with the aid of solar-powered light.She later

identified him at the police identification parade.We cannot understand why Ruth was only able to identify the 1st appellant out of the four people who had gone into her house.She did not point out any unique features on the 1st appellant.She also maintained that the 1st appellant was called Jeremy, a name she learnt from the police, when clearly that is not the 1st appellant’s name.

Ann also testified that with the aid of electric light, she was only able to identify the 1st appellant out of the four (4) gang members.

H.C.CR.A.NOS.20, 21, 23 & 23/2009

Again no reason or particular feature has been pointed out why it was easier to identify the 1st appellant.According to P.W. 4, the parade officer, the witness was able to identify the 1st appellant by his voice yet the witness in her evidence was categorical that she identified him by his appearance.

Apart from the evidence of Samuel, that he knew all the attackers and his identification of the 1st appellant and the 2nd appellant, there was no other evidence against the 2nd, 3rd and 4th appellants.

We come to the conclusion that the conditions prevailing at the time of the robbery were not favourabale for positive identification.

For those reasons, we allow the appeal, quash the conviction and set aside the death sentence imposed on the appellants.They shall all be set at liberty forthwith unless lawfully detained.

Dated, Signed and Delivered at Nakuru this 9th day of July, 2010

M.J.ANYARA EMUKULE

JUDGE

W. OUKO

JUDGE