[2010] KEHC 1569 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

Criminal Appeal 505 & 508 of 2003

S.K.N………………………………………...1ST APPEALLANT

E.G.K……………………….……………….2ND APPELLANT

VERSUS

REPUBLIC…………………….……………….RESPONDENT

(Appeals from original conviction and sentence in Nakuru

C.M.CR.C.NO.872/2003 by Hon S. M. MUKETI, Senior

Resident Magistrate, dated31st October, 2003)

JUDGMENT

The two appellants were tried in the court below as the 3rd and 4th accused persons with four others, the 1st, 2nd, 5th and 6th accused persons.Apart from the appellants, the 1st and 2nd accused persons also filed appeals which were consolidated with this appeal.However, the first accused, Sammy Mwangi escaped while the 2nd accused, Peter Mwangi died during the pendancy of this appeal.Appeal in respect of the latter has for the reason of his death abated.The 5th and 6th accused persons were acquitted for lack of evidence.

The appellants (1st and 2nd) were charged with two counts of robbery with violence contrary to Section 296(2) of the Penal Code.According to the charge sheet, the appellants together with

others robbed Michael Chepkok Kimaiyo and Godfrey Waiyaki of assorted personal items on28th March, 2003at Makutano along Nakuru-Eldoret road in Koibatek District.In support of these charges, the prosecution called evidence to the effect that the complainants were driving to Eldoret when upon reaching Eldama Ravine junction on the Nakuru-Eldoret road, they noticed people blocking the road with logs.The 1st complainant, who was driving, on seeing this, attempted to reverse but the car landed in a ditch, three people from the gang caught up with them and attacked them with pangas and a rungu (club).

The attackers made away with the motor vehicle as the 1st complainant ran into the bush.The 2nd complainant similarly disappeared into the bush after being robbed of cash and a watch.The two were taken to the hospital and the following day they learnt that the motor vehicle had been recovered at Timboroa.Five days later, on9th April, 2003, the complainants were informed that some of their stolen items had been recovered and suspects arrested.Both the complainants were unable to identify their attackers, except Peter Mwangi, the appellant who has died.They, however, identified all the recovered items as theirs.P.W.3, P.C. Peter Mutiso (P.C. Mutiso) after receiving the report of the robbery, began investigations, in the process of which the motor vehicle was recovered at Timboroa.According to P.C. Mutiso, the 2nd appellant

was arrested at Timboroa on 7th April, 2003 and that it was this appellant who led the police to arrest all the other five (5) suspects including the 1st appellant.

The 1st appellant was arrested while sleeping with another suspect in a house said to belong to the former.In that house, the police recovered four (4) jerricans, two (2) rungu (clubs), side mirrors, a jacket, a pair of white long trousers, a radio, perfume and a knife.P.W.5, P.C. David Kibet, (P.C. Kibet) related how the 2nd appellant was arrested.That on7th April, 203while on patrol with one Joseph Kurgat, they went to a spot notorious for robbery attacks in Timboroa at5. 15p.m.They saw seven (7) people who ran away on seeing them.The officers shot twice as the suspects fled into the bush.In the bush they found the 2nd appellant who they arrested.The 2nd appellant was arrested with a panga, saw, rungu (club), a nut and a bag.It was also P.C. Kibet’s evidence that the 2nd appellant was found hiding in a hole and pleaded with the officers not to kill him.An identification parade was conducted in respect of the deceased appellant.

The 1st appellant in his unsworn defence told the trial court that as he was taking milk to a collection point, he met police officers who asked him if he knew any of the persons whose names were in a list.When he failed to identify any, he was arrested and joined seven.

other suspects ostensibly to help with investigations.Instead he was charged with the offence, the subject to this appeal.The 2nd appellant on his part, testified that while looking for two goats that had disappeared in the bush he met police officer who arrested him for no apparent reason.

As the first appellate court, we must subject this evidence to fresh consideration and re-evaluation in order to make independent conclusion, bearing in mind that we have not had the advantage of hearing and seeing the witnesses.The appellants have raised more or less the same grounds in their respective petitions.

We may summarize those grounds as follows:

i)that there was no proper identification

ii)that the trial court shifted the burden on the appellants

iiithat the prosecution evidence was insufficient to find a conviction.

The 2nd appellant who was unrepresented raised two separate/additional grounds in his written submission and in his address to us.He complained that his constitutional rights were violated in that he was detained by the police beyond the fourteen (14) days allowed by the Constitution.Secondly he submitted that at the time of his conviction, he was only sixteen (16) years old.

Whereas by dint of section 350(2)of the Criminal Procedure Code, no such ground, which is not contained in the petition can be raised, at the hearing of the appeal.That prohibition may only be applicable to the first ground as the prosecution has had no notice of it in order to avail justification, if any for holding the 2nd appellant beyond the prescribed period

However, regarding the 2nd appellant’s age, it is apparent from the appendix to the charge sheet that he was sixteen (16) years old.His defence is also clear that he wasa primary school pupil.For that reason, we shall consider this ground.

Clearly, from the totality of the evidence presented, the appellants were not identified, either at the scene of the robbery or at an identification parade.The only nexus between them and the robbery is the fact that the 2nd appellant was in the bush hiding in a hole with certain items suspected to have been stolen; that he had other items believed to be for use in the commission of crimes.There is also the evidence that the 2nd appellant led the police to a house where other stolen items were recovered and suspects arrested.As we consider this evidence, we bear in mind that the robbery was at Makutano on the Nakuru-Eldoret road yet the arrest was at Timboroa.Secondly the arrest and recovery was several days after the robbery.

We start with the arrest of the 2nd appellant.It was the evidence of P.C. Kibet that they arrested the 2nd appellant in the bush.To that extent, it is common ground that the 2nd appellant was arrested in the bush.P.C. Kibet maintained that the 2nd appellant was

part of the seven (7) man gang that had run into the bush.He, however, did not say how he arrived at that conclusion – whether he chased the 2nd appellant into the bush from the road without loosing sight of him, remembering that there were seven (7) people being chased.He further testified that the appellant was hiding in a hole.There was evidence that the police shot twice.That alone was enough for any person in the bush for any other purpose to take cover.

It is equally incredible that the 2nd appellant would still be found in the bush in possession of items stolen over seven days prior to his arrest.We find no evidence liking the 2nd appellant to the robbery of28th March, 2003. While still on the 2nd appellant, despite having stated in his defence that he was a pupil in S Primary School, a fact supported by the charge sheet, the learned trial magistrate proceeded to sentence him to death.

Section 25(2)of the Penal Codeprovides:

“Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he wasunder the age of eighteen years but in lieu thereof the court shall sentence such a person to be detained during the President’s pleasure…….”

Turning to the evidence against the 1st appellant, it was the prosecution's case that the 2nd appellant led the police to a house belonging to the 1st appellant where he was found sleeping with another suspect and various stolen items recovered.In view of our finding of the circumstances under which the 2nd appellant was arrested, we are of the view that the evidence that he led the police to this house is suspicious.Secondly and more significantly, two men and two ladies were found in the house in question.The 1st appellant denied ownership of the house.

It was incumbent upon the prosecution to prove beyond any doubt by calling evidence that indeed the house belonged to the 1st appellant.As was held in the case of Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Vs. Republic, Criminal Appeal No.272 of 2005, a conviction can only be based on the doctrine of recent possession if it is proved that:

i)the stolen property was found with suspect

ii)the stolen property was positively identified as belonging to the complainant

iii)the property was recently stolen from the complainant

It was imperative to prove that the stolen items were found with the 1st appellant.Without that evidence, we find, once again that there is

no evidence linking the 2nd appellant with the robbery of28th March, 2003.

For these reasons, this appeal succeeds.The conviction is quashed and the death sentence passed on each of them is set aside with the result that the appellants will be set at liberty forthwith unless held for any other lawful reason.

Dated, Signed and Delivered at Nakuru 30th day of April, 2010.

M. J. ANYARA EMUKULE

JUDGE

W. OUKO

JUDGE