[2019] KEHC 411 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MILIMANI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 57 OF 2009

CONSOLIDATED WITH

CRIMINAL APPEAL NO. 58 OF 2009

BETWEEN

SIMON NDUNG’U WAINAINA ....................................1ST APPELLANT

PAUL NDUNG’U KARIUKI.........................................2ND APPELLANT

AND

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

(Being an appeal from original conviction and sentence in the Chief Magistrate’s Court at Nairobi Cr. Case No. 522 of 2007 written by Hon. L. Mutende, CM, delivered by Hon. G.C. Mutembei, CM, on 13th July, 2010).

JUDGMENT

1. The Appellants were jointly charged alongside another in eleven counts for various offences. In count XII. The 1st Appellant was charged alone with the offence of attempted escape from lawful custody contrary to Section 389 of the Penal Code. In counts I, III and VI they were charged with attempted robbery with vi0lence contrary to Section 297(2) of the Penal Code. In II, IV, V,VII,VIII,IX X and XI they were charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. There was also an alternative charge to count VII against the 2nd Appellant of handling stolen properly contrary to Section 322 of the Penal Code. The particulars of each of the offence are set out here under:

I. Count II: On the 4th day of February 2007 along Isinya /Kiserian road in Kajiando district of the Rift Valley province jointly with others not before court while armed with dangerous weapons namely AK 47 rifles attempted to rob ISAAK LESHAO a motor vehicle registration No. KAM 827Q Toyota Surf valued at Kshs. 900,000/= and at or immediately before or immediately after the time of such attempted robbery threatened to use actual violence to the said ISAAK LESHAO.

II. Count II: On the 4th day of February 2007, along Isinya Kiserian road in Kajiando District within the Rift Valley Province, jointly with others not before court while armed with dangerous weapons namely AK 47 rifles robbed LAWRENCE REGERU WAMBAA unknown amount of money and personal effects ad at or immediately before or immediately after the time of such robbery shot to death the said LAWRENCE REGERU WAMBAA.

III. Count III: On the 4th February 2007, along Isinya Kiserian Road in Kajiado District within the Rift Valley Province jointly with others not before court while armed with dangerous weapons namely AK 47 Rifles attempted to rob PIUS WAITHAKA REGERU a motor vehicle Reg. NO. KAN 714K Mitsubishi Pajero valued at Kshs. 1. 7 million and at or immediately before or immediately after the time of such attempted robbery threatened to use actual violence to the said PIUS WAITHAKA REGERU.

IV. Count IV: On the 4th February, 2007 along Isinya/Kiserian Road in Kajiado District within the Rift Valley Province, jointly with others not before court, while armed with dangerous weapons namely AK 47 rifles robbed SIMON NJOGO NGANGA cash Kshs. 3,000/=, 110 US Dollars and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said SIMON NJOGO NGAGA.

V. Count V: On the 4th February, 2007 along Isinya/Kiserian Road in Kajiado District within the Rift Valley Province, jointly with others not before court, while armed with dangerous weapons namely AK 47 rifles robbed JOHN KURIA KIMANI cash Kshs. 6,000/=, and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said JOHN KURIA KIMANI.

VI. Count VI: On the 4th February, 2007 along Isinya/Kiserian Road in Kajiado District within the Rift Valley Province, jointly with others not before court, while armed with dangerous weapons namely AK 47 rifles attempted to robbed FELISTA NJERI KURIA personal effects of unknown value and at or immediately after the time of such attempted robbery threatened to use actual violence to the said FELISTA NJERI KURIA.

VII. Count VII: On the 4th February, 2007 along Isinya/Kiserian Road in Kajiado District within the Rift Valley Province, jointly with others not before court, while armed with dangerous weapons namely AK 47 rifles robbed SOPHIA KANUTHU NJOGO one mobile phone make Samsung model X460 S/NO 357305/00/029027/2 valued at Kshs. 11,000/= and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said SOPHIA KANUTHU NJOGO. In the alternative on the 10th day of February 2007 at Ruthimitu Area in Kiambu District Central Province, otherwise than in the cause of stealing dishonestly retained one mobile phone make Samsung model X460 S/NO 357305/00/029027/2 knowing or having reasons to believe it to be stolen property or unlawfully obtained.

In the alternative to count VII, it was alleged that on the 10th day of February, 2007 at Ruthimitu area in Kiambu District, Central Province, otherwise than in the course of stealing dishonestly retained one mobile phone model X460 S/NO 357305/00/029027/2 knowing or having reason to believe it to be stolen property or unlawfully obtained.

VIII. Count VIII: On the 4th February, 2007 along Isinya/Kiserian Road in Kajiado District within the Rift Valley Province, jointly with others not before court, while armed with dangerous weapons namely AK 47 rifles robbed JOB BWAYO unknown amount of money and personal effects and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said JOB BWAYO.

IX. Count IX: On the 4th February, 2007 along Isinya/Kiserian Road in Kajiado District within the Rift Valley Province, jointly with others not before court, while armed with dangerous weapons namely AK 47 rifles robbed ELIZABETH BWAYO a Motor Vehicle Reg. No. KAP 679K Mitsubishi Pajero and unknown amount of money and at or immediately after the time of such robbery wounded ELIZABETH BWAYO.

X. Count X: On the 4th February, 2007 along Isinya/Kiserian Road in Kajiado District within the Rift Valley Province, jointly with others not before court, while armed with dangerous weapons namely AK 47 rifles robbed ELIZABETH RUGARA personal effects of unknown value and at or immediately after the time of such robbery used actual violence to the said ELIZABETH RUGARA.

XI. Count XI: On the 4th February, 2007 along Isinya/Kiserian Road in Kajiado District within the Rift Valley Province, jointly with others not before court, while armed with dangerous weapons namely AK 47 rifles robbed CAROL BRIGGS personal effects of unknown value and at or immediately before or immediately after the time of such robbery used actual violence to the said CAROL BRIGGS

XII. Count XII: On the 19th February, 2007 At Ongata Rongai Police Station in Kajiiado District, within the Rift Valley Province, while being in lawful custody at Ongata Rongai Police station after arrest for the offence of robbery with violence, attempted to escape from such lawful custody.

2. After a lengthy trial in which the prosecution called a total of 17 witnesses the two Appellants were convicted in Counts I - XI and the 1st Appellant in count XII. They were dissatisfied with both the conviction and sentence and preferred the respective appeals to the High Court. An initial appeal in the High Court was heard and both the conviction and sentence upheld by Monicah Mbaru and James Rika, JJ in a judgment delivered on 18th November, 2013. The Appellants preferred a second appeal to the Court of Appeal which ordered that the High Court re-hears the appeals because the judges who initially heard it had no jurisdiction as they were appointed as Employment and Labour Relations Court judges. This culminated into the current judgment.

3. The Appellants initially contested conviction and sentence. Indeed, when the hearing commenced, they were represented by learned counsel, Mr. Ondieki who after oral submissions highlighting written submissions done by the Appellants in person informed the court that the Appellants had abandoned the appeals on conviction and only wished to contest the sentence.

4. It suffices to state that the Appellants are also the Appellants in High Court Criminal Appeals no. 395 and 396 of 2010 (consolidated). In his submission learned counsel, Mr. Ondieki submitted that the Appellants had been in remand for over 13 years during which period they had been remorseful and regretted the crimes they had committed. He went on to tell the court that they were both married and required to go and take care of their families. He also requested that a pre-sentencing reports be filed and that pursuant to the Supreme Court decision in the case of Francis Kariouko muruwatetu and Another v Republic (2017)e KLR, the court sets aside the death sentence and prefers an appropriate sentence preferably to consider that the period spent in custody was sufficient punishment.

5. Pursuant to this request, the court ordered for the filing of probation officer’s pre-sentence reports. Meanwhile, learned State counsel Mr. Momanyi whilst not opposing the setting aside of the death sentence, urged the court to impose a severe sentence owing to the gravity of the offences. He urged the court to take into account that a dangerous weapon, namely an AK 4 riffle was used in the robberies in which three people were killed. In addition that the victims lost money and personal belongings.

6. In rejoinder, the 1st Appellant urged the court to take into account that he is married with three children and that the court should give him a second chance to be a good citizen. In addition, he informed the court that he had learnt some skills in prison which would assist him and his family if he was released.

7. The 2nd Appellant on his part prayed for leniency, that the was remorseful and required a second chance out of prison.

8. The probation office’s reports were filed on 25th September, 2019 by Mr. Andrew Kanyutu M. These reports were used in Appeal Nos. 395 and 396 of 2010 as well.

9. According to the reports, as regards the 1st Appellant, he maintains innocence but regrets that lives were lost and families of the victims continue to hurt to date. He added that some family members of the victims visited him at Kamiti Prison and forgave him. However, this information could not be verified by the relatives of the deceased persons. He continues to have support from his brother and sister who particularly takes care of the Appellant’s family. Indeed, his family members are eager to have him back home and contribute to his change of character more so, because his children require his presence.

10. The only views of victims obtained were from the widow of the late Prof. Job Bwayo (victim in count VIII). The deceased was renowned international researcher on HIV vaccine. He was survived by four children and a widow (victim in Count IX). Since the robbery, the wife has remained indisposed and subsequently undergone treatment in USA and Kenya. She is yet to recover from the injuries as she sits down with difficulties and has never regained her full speech or mobility. In fact, she was tormented by the interview which according to her was a revisit of the painful experience she underwent that has completely changed her life. She wondered what kind of justice would be visited on the Appellants if they were released yet they had already been condemned to death. She literally could not fathom a release of the Appellants from jail. She was reluctant to give sufficient details of the experience due to the psychological, emotional and physical pain she went through that continues to traumatize her. Indeed, in her own statement she could not conceptualize how the Appellant’s could be released yet her family continue to suffer not only in sickness but the death of a loved one. Efforts to track other victims through the American Embassy and DCI offices in Gigiri in Kabete were not successful.

11. As regards the community’s views, the Area Chief was interviewed and he described the 1st Appellant as a notorious criminal. Other community members declined to divulge information about the Appellant for fear of their own security.

12. As regards interview with fellow inmates and prison officers they described him as a very dangerous man. To them, a favorable re-sentencing will be good riddance so that he leaves the prison.

13. The conclusion of the Probation Officer is that the 1st Appellant was not remorseful having not acknowledged that he committed the offence. To him, the offences were committed by other gangsters who were killed by police in 2007. His personal view was that for the 13 years he has been in prison, he has reformed and was ready to prop up his life and that of his family with the help of the skills he has learnt in prison. Nevertheless, according to the Probation Officer, the Appellant is feared by the community and still considered a danger if he were released. The officer hoped that the findings in the report will help the court to reach to an objective decision.

14. As regards the 2nd Appellant, the pre-sentence report indicates that he does not acknowledge he committed the offence. He was however remorseful and claimed to feel the pain and anguish undergone by the families of the deceased person. He added that he had rehabilitated in prison by learning artisan skills which would assist him reorganize his life if he left prisons. It is stated that he has now learnt how to deal with anger and interpersonal skills which would help him relate with other members of the community. He has additionally attained a grade 3 in mechanic. He also intends to model drug users through counselling having learnt the skill in prison.

15. As regards interview with the family, a cousin one Hannah Njambi gave a background of the 2nd Appellant as a person who comes from a destitute family. His parents were deceased and the wife died in 2014 leaving behind three children. His two other siblings are dependent on alcohol and live irresponsible lifestyle. She described him as a person who previously was free from crime and related well with other members of the public. She highly vouches for his release so that he can go back and take care of his children who are currently under the care of well-wishers.

16. On the victim’s impact statement, the same is similar to that obtained with respect to the 1st Appellant. It is only the window of Prof. Job Bwayo who was interviewed and her statement is underscored hereinabove in this judgment.

17. In conclusion, the probation officer notes that the 2nd Appellant’s children have undergone a challenging time since the death of their mother and incarceration of their father. Their education is wholly dependent courtesy of NGO organizations. However, the wife of the deceased late Pro. Bwayo, Mrs. Bwayo, was against his release lamenting that such a move would be insensitive to the pain she and other victims went through. The Probation Officer however left the court to make an independent and impartial sentence on the appropriate sentence to impose upon the 2nd Appellant.

18. This being an appeal against sentence, the duty of the court is basically to highlight both the aggregating and mitigating factors obtaining in the case. I underscore the fact that as an appellate court, I cannot disturb the sentence imposed unless it is not based on law or the trial court did not take into account the circumstances of the case thereby arriving at an erroneous sentence.

19. The current jurisprudence set out in the case of Francis Kariuoko Muruwatetu and Another vs Republicby the Supreme Court has outlawed by declaring unconstitutional minimum mandatory sentences. Therefore, although under Section 296(1)(2),the Appellants are liable to suffer a mandatory death sentence, this court on re-evaluation of the evidence and taking into account the circumstances of the case and the mitigating factors may set aside the death sentence and substitute it with any other appropriate sentence.

20. The case for the prosecution is represented by a drama in which the Appellants together with two other persons went on rampage along Isinya Kiserian Road in the then Kajiado District (now County). It was in the late afternoon of 4th February, 2007 when they started waylaying motorists on the road blocked them using a Nissan Car white in colour, in some instances shooting the victims without provocation and subsequently robbing them of their money and personal belongings.

21. The first victim was PW1 a Mr. Regeru who was driving a Pajero with his father on the front passenger seat. When he was blocked and ordered to stop he complied but was pulled out of the vehicle and forced to lie on the ground. Similar orders were issued to his father. As PW12 lay down, unknown to him and despite his father complying with the robbers orders, he (his father) was shot. PW1 realized that his father was shot and killed after all went quiet and he found his father lying on the ground motionless.

22. The robbers fled with the Pajero vehicle which they used to block a Subaru car belonging to PW2, Simon Njogu. Simon was accompanied by PW3, John Kuria Kimani who was with his wife Felista and Sophia Karugu Njogu. When their car was blocked, the robers led by the 1st Appellant confronted them and started shooting without any provocation. Unfortunately, Felista died in the process.

23. Another victim after the robbery of PW1, 2, 3, and 4 was PW6, Isaac Gichana. He too was driving along the same road a Toyota Surf when he was blocked by a white Nissan car. Before then, he had noticed men who were walking on the road with one (2nd Appellant) pretending to be drunk. He had briefly stopped on the road after meeting a friend of his who was riding a motor cycle. The cyclist left just before the pedestrians reached where he was. When he got into his vehicle to drive away, the Nissan car pulled in front to block him. Meanwhile, he noticed that the 1st Appellant was carrying a bag which he placed on the ground and pulled out an AK47 riffle and pointed at him. His sixth sense told him to run away. He ran away with the 1st Appellant in pursuit shooting at him. Fortunately, the 1st Appellant did not catch up with him. He managed to call a police officer who respondent much later.

24. With respect to count number XIII, the victim Jacob Bwayo was shot dead with his wife Elizabeth Bwayo who was the complainant in Count No. IX sustaining severe injuries. Although the two did not testify, the investigations revealed that their robbery was in the same style and along the same road as other victims. Elizabeth Bwoyo was robbed Motor Vehicle No. KAP 697K. She give an interview with the probation officer whose views are spelt out above in this judgment.

25. The summary of the prosecution evidence was clear that the 1st Appellant was the commander of the gang and was always trigger happy to start the shooting even when the victims had not defied their orders. This led to loss of innocent souls in circumstances that were avoidable. Apart from the killing and the use of dangerous weapon another aggravating factor the court considers is that the series of the robberies in the instant case were committed within less than a week apart from the robberies subject of High Court Cr. Appeal Nos. 395 and 396 of 2010. Clearly therefore, the Appellant had not demonstrated remorse for what they had done. I underscore the fact that after the commission of the offence, the 2nd Appellant upon arrest escaped from lawful custody at Gigiri Police Station only to be rearrested on 3rd March, 2007. This was a clear demonstration that he was not ready to abide by the law or giving in to the authority so as to be subjected to the rule of law.

26. Reading through the evidence, it is a clear testimony of the pains of the family members who were present during the robbery went through. Although most of the surviving members could be reached for interviews by the Probation Officer, the interview of Prof. Amos Bwayo’s wife is a testament of the pain and trauma that the victims continue to undergo. The court cannot simply wish it away that at the interest of the Appellants’ families should supersede the intensity with which the robberies were committed, the gravity of the violence meted and the resultant consequences of the robberies.

27. True, the Appellant have trained in the various skills elucidated in their submissions and confirmed in the Probation Officer’s report, but that alone cannot be sufficient reason why they should be set free to go back to the society without ensuring that they serve and take responsibility for the mistakes that they made.

28. I have regard to the fact that the 1st Appellant is considered by both the community and the prisons a dangerous person. It is in that prison that he ought to be reformed. It is unfathomable that the prison would wish him released because he is already a trouble to them. If this were to be taken to warrant his release, what would the community do with him if he is released? My take is that the prison must take up their responsibility and ensure they marshal all their skills and efforts to meet the purpose for which the 1st Appellant went to prison.

29. Although he remains innocent until proven guilty, the court cannot turn its back from the fact that he is facing a murder trial in High Court Cr. Case No. 18 of 2013 in which he is accused of murdering a fellow inmate, Peter Mungai Macharia in Naivasha GK prison on 27th April, 2011. As at date, the prison authorities consider him a danger not only to themselves but to fellow inmates. It would be unkind to humanity and the purpose for serving justice that such a person should be released back to the community which regards him a danger after remaining in custody for only 13 years.

30. I take the view that a stringent sentence ought to accrue with the offences the 1st Appellant committed. Having regard to those aggravating factors, the mitigating factors are outweighed. He has trained in mechanic, holds a certificate in Islamic Studies and trained in football couching. These are skills that only promote his personal development but do not impact on the lives of the victims of the people he killed. The purposes of a punishment must be met by imposing a stringent sentence.

31. Having weighed all these circumstance, I bear in mind that death sentence may not always reform an offender. But he should serve a jail term long enough to remind him of the crimes he committed. In his respect therefore I set aside the death sentence and order that he shall serve 50 years imprisonment commencing from the date of his arrest.

32. As for the 2nd Appellant, a slightly shorter jail term is mitigated by the fact that he has remained a person of good character whilst in prison. He too was arrested whilst a very young man but at the same time, he must shoulder the responsibility for the crimes. I do note that in the robberies, he did not take as an active role as the 1st Appellant. Although he commanded the victims and participated in the theft of their goods, the person who was trigger happy was the Appellant. Of course culpability should be in equal measure, but a stringent punishment is further mitigated against by his subdued role. I also set aside the death sentence in his respect and substitute it with an order that he shall serve 45 years imprisonment commencing from the date of his arrest. It is so ordered.

Dated and Delivered at Nairobi This 16th October, 2019.

G.W.NGENYE-MACHARIA

JUDGE.

In the presence of;

1. Mr. Ondieki for both Appellants.

2. Mr. Momanyi for the Respondent.