[2017] KEHC 524 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 145 OF 2015

SIMON NDUNGU MUGO ....................... 1ST APPELLANT

ISSACK WAWERU MWANGI .................. 2ND APPELLANT

VERSUS

REPUBLIC ................................................................... STATE

(Appeal from the Judgment of the Chief Magistrate’s Court at Nakuru Hon. M. Nyakundi–Principal Magistrate delivered on the 28th May 2015 in CMCR Case No.2720 of 2013)

JUDGMENT

The two appellants namely SIMON NDUNGU MUGO (hereinafter referred to as the 1st appellant) and ISSACK WAWERU MWANGI (hereinafter referred to as the 2nd appellant) have both filed this appeal challenging their conviction and sentence by the learned Principal Magistrate sitting at the Nakuru Law Courts.

The two appellants had both been arraigned before the trial court on 12/8/2013 facing a charge of ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2) OF THE PENAL CODE. The particulars of the charge were that

“On the night of 1st and 2nd day of August, 2013 at Mwariki Estate Nakuru within Nakuru County, jointly with others not before court while armed with dangerous weapon namely pistol robbed one Hilda Wambui Machariamobile phone make LG 360, a decoder make star time, a DVD Hoover and cash Ksh 16,000/= all valued at Ksh 54,000/= and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said Hilda Wambui Macharia”.

Both appellants pleaded ‘Not Guilty’to the charge and their trial commenced on 3/10/2013. The prosecution called twelve (12) witnesses in support of their case.

The complainant HILDA WAMBUI MACHARIA testified as PW1. She told the court that on 1/8/2013 she was asleep in her house with her two children aged 3½ years and 2 years. At about 11. 00pm PW1 heard some movements in her house. She woke up and went to the living room and switched on the lights. She saw a man climbing in through the window. PW1 then rushed to her bedroom to make a call. The intruder who was armed with a knife followed her to the bedroom and demanded the keys to the door which she gave him. The intruder opened the door and three other men entered the house. They instructed PW1 to phone her husband to come home. PW1 phoned her husband but he did not come immediately. The robbers then sat with her in the living room watching TV from 11. 00pm to 3. 00am as they waited for her husband to arrive.

After getting tired of waiting the robbers threatened to leave with the two young children but PW1 screamed and the children were released. The first intruder stripped naked and threatened to rape PW1 but his colleagues dissuaded him.

Eventually the men took the DVD player, a woofer and the complainant’s mobile phone. They demanded that she gave then Ksh 250,000/= but PW1 only gave out Ksh 16,000/= which was all the cash she had on her. The men then left and went away.

PW10 PETER MUREITHI was the husband to PW1. He told the court that on the night of 1/8/2013 at about 11. 00pm his wife phoned him and requested him to go back home. PW10 did not go. PW1 called him again but PW1 still did not leave for home. PW1 then called her husband a third time and informed him that she had been attacked by robbers. PW10 then went to his house in the company of police officers. He found the robbers had already left. PW10 confirmed that a DVD player, Ksh 16,000/= and his wife’s mobile phone had been stolen.

The incident was reported to police who launched investigations into the matter. On 11/8/2013 police called PW1 to the police station where she attended an identification parade in which she positively identified the 2nd appellants. Later police also recovered an LG mobile phone, and a DVD player which PW1 identified as her stolen property.

The two appellant’s were eventually arrested and were charged with the offence of Robbery with Violence.

At the close of the prosecution case both appellants were found to have a case to answer and were placed onto their defence. Each gave a sworn defence denying any involvement in the robbery incident.

On 28/5/2015 the learned trial magistrate delivered his judgment in which he convicted both appellants and thereafter sentenced each to death. Being aggrieved the two appellants each filed an appeal. For purposes of expediency the two appeals were consolidated and heard as one. MR. MAGETO Advocate represented both appellants in this appeal.

This being a first appeal the court is obliged to re-examine and re-evaluate the prosecution case and draw its own conclusions on the same.

PW1 narrated to the court how she was attacked in her home on 1/8/2013 at about 11. 00pm. At the material time PW1 was alone in her home save for her two very young children.

In her testimony PW1 stated that the first intruder who entered her home was armed with a shiny knife. The man threatened her and forced her to hand over the house keys. He then opened the door and let in some other three men. One of the three men was armed with a gun which PW1 described as a ‘short gun with some wooden part to the top’. The four men terrorized PW1 in her home for several hours and finally stole from her. The events as described by PW1 fall squarely within the definition of Robbery with Violence. Counsel for the appellants submitted that in the absence of the production of a P3 form indicating any injury to PW1 this incident could not be described as a Robbery with Violence. However in the case of OLUOCH Vs REPUBLIC [1985] KLR 549, the court held (obiter) as follows:-

“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 other persons or persons; or

c) 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”.

The use of the word ‘or’ in the above definition means that the existence of any one of the three conditions makes the offence a Robbery with Violence. In this case the theft was committed by four men who were armed with a knife and a gun. I am satisfied that this incident did amount to a Robbery with Violence as envisaged by Section 296(2) of the Penal Code.

The next crucial ingredient requiring proof is that of identification. There must be evidence to properly identify the two appellants as amongst the gang who robbed the complainant.

PW1 herself has positively identified both the 1st and the 2nd appellants as being among the men who raided her home and robbed her on the material night. The incident occurred at night at 11. 00pm to be precise. PW1 stated that when she heard movements in her house, she moved to the living room and switched on the lights. At Page 4 line 3 of her evidence PW1 says

“I heard a lot of movement in the house, I woke up and went to the sitting room and put on the lights. I saw a man in the window getting in”.

PW1 identified the 2nd appellant as the man she saw climb into her window. The lights were on in the house. PW1 says she ran to her bedroom to get her phone but the 2nd appellant followed her there.

The witness states that it was the 2nd appellant who demanded the house keys from her and it was he who opened the door to let his accomplices in. She is clear that it was the 2nd appellant who was armed with the knife and states that it was the 2nd appellant who stripped naked and threatened to rape her.

I find thatPW1 spent a long period of time in the company of the robbers. They sat with her in her living room from 11. 00pm to 3. 00pm watching TV as they waited for her husband to return. The 2nd appellant spoke directly toPW1 giving him ample opportunity to see him well. In her evidence at page 4 line 23 PW1stated

“I did identify the person who had come to my bedroom. He threatened to kill me by way of gesture. He is Accused 2 at the dock. I stayed with the intruders for a very long time. They talked to me and the lights were on……”

Further PW8 ANN NJUMA WHO was the investigating officer told the court that what PW1 told the court is exactly what she told the police PW8 stated in her evidence at page 21 line 24

“She (complainant) told me she had been attacked on the night of 1/2-8-2013 by three people. She said she stayed for a long time with the intruders who were waiting for her husband. She said she would be able to identify the intruder who she found entering via the window. The house had electric lighting. She told me she stayed watching movies with the intruders …..”

There can be no doubt whatsoever that in those circumstances PW1 saw her assailants and her identification of the 2nd appellant is reliable.

The visual identification of the 2nd appellant at the scene was further confirmed by PW1 at the identification parade mounted by the police.

PW12 CORPORAL CHARLES MWAIZINGA gave evidence regarding the identification parade conducted by his colleague SUPT JOSEPH ONGERA KEMIMA, who at the time of the hearing was out of the country pursuing further studies. The parade form P. exb 6(a) indicates that during an identification parade conducted in 11/8/2013 the complainant positively identified the 2nd appellant by touching him. The 2nd appellant signed the parade form and indicated that he was satisfied with the manner in which the parade was conducted. The complainant gave her evidence in a clear and concise manner. She remained unshaken under cross-examination by the 2nd appellant. There was therefore a clear and a positive identification of the 2nd appellant by the complainant.

Additionally the prosecution sought to rely on evidence of recovery to link the 2nd appellant to the robbery. PW1 stated that during the incident she was robbed of a DVD player, make LG as well as her mobile phone.

PW2 ISSACK KIRAGU told the court that on 11/8/2013 the 2nd appellant came to him seeking a loan of Ksh 1,500/=. The 2nd appellant offered PW2 an LG DVD player to guarantee that loan. PW2 did advance to the 2nd appellant the money he required and kept the DVD player as a guarantee for the loan. Later the two appellants came to the premises of PW2 in the company of police who took away the DVD player.

The LG DVD player was produced in court as an exhibit. P. exb 3. PW1 said she was called to the police station on 11/8/2012 where she saw and identified the LG DVD player as the very one which was stolen from her house.

PW2 told the court that it was the 2nd appellant who came in the company of 1st appellant and delivered the DVD player to him in return for a loan of Ksh 1,500/-. The person with whom PW2 was transacting was the 2nd appellant. The witness positively identified the 2nd appellant in court. He referred him by his name ‘Waweru’ . This was a man well known to PW2 one whom he referred to as a friend.

PW2 gave clear and concise evidence. He identified the DVD player the 2nd appellant had brought to him. There was no suggestion of a pre-existing grudge or any other reason why PW2 would want to frame the 2nd appellant. The two were friends – indeed that is why PW2 readily granted the 2nd appellant the loan he had asked for. I am satisfied that PW2 was a truthful witness. At no time did the 2nd appellant claim that the DVD player belonged to him. It is instructive to note that it was the two appellant’s who led police to recovery of the DVD player. This is clear proof that it was the 2nd appellant who had delivered that DVD player to PW2.

The robbery incident occurred on 1/8/2013. On 11/3/2013 barely ten days later the 2nd appellant was delivering the DVD player stolen from the home of PW1 to PW2 in order to secure a loan. The doctrine of ‘recent possession’ squarely applies in these circumstances. The fact that the 2nd appellant had that stolen DVD player barely a week after it had been stolen is proof that he was involved in the theft of the same. A DVD player is not a small item which can change hands easily. Possession of such an item ten days after its theft can in my view be deemed to amount to ‘recent possession’. This therefore is further evidence of the 2nd appellant in the robbery.

There was also an attempt to link the 2nd appellant to the robbery incident through the recovery of the mobile phone stolen from PW1. In her evidence PW1 stated that on the night in question she was robbed of an LG 360 mobile phone pink/white in colour. Later on PW1 was called to the police station and shown an LG mobile phone which she identified as hers P exb 1. PW1 did also produce in court the receipt for the purchase of said mobile phone P exb 2. I have no doubt that the mobile phone recovered by police was the very phone which had been stolen from PW1 during the robbery incident of 1/3/2013.

This mobile phone P. exb.1 was recovered on PW3 KEVIN SEPWA who told the court that he purchased it from a man at the Molo-line stage in Nakuru. PW3 did not identify either the 1st or 2nd appellants as the men who sold him that mobile phone.

PW4 CHARLES OPIYO testified that it was he who took PW3 to one ‘Ken’ who sold the phone to them. The said ‘Ken’ was not arrested and neither was he called to testify in this case despitePW4 stating that ‘Ken’ is still residing in Nakuru. Failure to call this crucial witness has not been explained by the prosecution.

PW6 PC DANIEL MUSAU told the court that he went to the shop of this mysterious ‘Ken Mathenge’ who informed him that it was the 1st appellant who sold him the phone. PW6 laid an ambush at the shop and arrested the 1st appellant who in him claimed that he had been given the mobile phone by the 2nd appellant.

This whole story regarding the recovery of this phone is totally convoluted and lacks cogency. The link to either of the appellant’s is in my view very remote. The 1st appellant upon his arrest claimed that it was the 2nd appellant who had given him the mobile phone. This is evidence of a co-accused who probably only named the 2nd appellant in an attempt to turn the heat from himself. The most crucial witness for this aspect of the case was inexplicably not called to testify. I find no credible evidence linking either the 1st or 2nd appellant to the recovered phone.

In his defence the 2nd appellant gave what can only be termed as a blanket denial to the charge. He did not address the events of the material dated but only referred to the date and circumstances of his arrest. His defence did not shake the prosecution case in any way.

The appellant had applied (which application was granted) to adduce additional evidence being the OB report No. 26 of 2/8/2013. The OB extract detailed the report made by PW1 to police about the incident. It is not clear why the appellants called for this OB but I assume the purpose was to demonstrate that the complainant did not give a ‘description’ of her assailants. This in no way negates the evidence of PW1. An OB report is simply that ‘a report’. It is not a detailed account of the incident. It is simply a report made to police which triggers an investigation. An OB report is brief and to the point. It cannot be expected to contain all details of the incident – these would only be found in the written statement. In my view the failure of PW1 to give a description of the robbers in her OB report not fatal to the prosecution case.

Finally based on the above I am satisfied that the evidence on record being the eyewitness testimony from PW1, the evidence of identification at the police parade, and the evidence of the recovery of the DVD player all clearly points at the 2nd appellant as one of the men who broke into the house of PW1 and robbed her on the night in question. I am satisfied that the guilt of the 2nd appellant was proved beyond reasonable doubt and I confirm his conviction by the trial court.

With respect to the 1st appellant the evidence is neither clear nor overwhelming. Whereas PW1 identified the 2nd appellant and described in great detail the role which he played in the robbery incident, she was not as forthcoming with details with respect to the 1st appellant. All that PW1 had to say about the 1st appellant was that

“Accused 1 wore a cap and boots”.

This cannot be said to be a clear identification of the 1st appellant. She did not describe what role if any he played in the robbery. Given that the robbers were in the house of PW1 for several hours, she ought to have been able to tell the court much more about the 1st appellant. The narration by PW1 leaves some doubt as to the involvement of the 1st appellant in the incident.

Likewise the evidence regarding the recovery of the items stolen during the robbery does not in any convincing manner implicate the 1st appellant. PW2 from whom police recovered the stolen DVD player told the court that he mainly dealt with the 2nd appellant. This witness only mentions the 1st appellant as the man who ‘accompanied’ the 2nd appellant to collect the Ksh 1,500/= from PW2. No link is shown between the recovered DVD player and the 1st appellant.

Similarly the evidence regarding the recovery of the stolen phone only touches upon the 1st appellant in a very opaque and round-about manner. PW6 stated that one ‘Ken Mathenge’ told him that it was the 1st appellant who delivered the stolen mobile phone to his shop. The said ‘Ken Mathenge’was never called as a witness in this case. This therefore remains hearsay evidence which the court cannot rely on to implicate the 1st appellant in the robbery.

As stated earlier grave doubts remain regarding the involvement of the 1st appellant in the robbery. The evidence on record did not prove his guilt beyond reasonable doubt. The benefit of such doubt must in law be accorded to the 1st appellant. I find that the conviction of the 1st appellant by the learned trial magistrate was without sound basis. Accordingly I quash that conviction and set aside his sentence.

Finally I direct that the appeal of the 1st appellant SIMON NDUNGU MUGO is successful and he is to be set at liberty forthwith unless he is otherwise lawfully held.

With respect to the 2nd appellant ISAACK WAWERU MWANGI his appeal fails and is dismissed in its entirety. The conviction of the 2nd appellant is upheld by this court. Similarly the death sentence imposed upon the 2nd appellant by the trial court being the only lawful sentence for the offence is hereby confirmed.

Dated in Nakuru this 3rd day of November, 2017.

Ms Biko holding brief for Ms Ateka

Maureen A. Odero

Judge