[2018] KEHC 5149 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCRA NO. 16 OF 2017

SOLOMON MUKIRA MUTHUNGU....................APPELLANT

VERSUS

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

Being appeal from original conviction and sentence in the Principal Magistrate's Court at Marimanti in Criminal Case No.453 of 2016 delivered by L.N. MESA - (Senior Resident Magistrate (S.R.M) on 9th November, 2017).

J U D G M E N T

1. SOLOMON MUKIRA MUTHUNGU,the appellant herein was charged with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code through Marimanti Magistrate's Court Criminal Case No. 453 of 2016. The particulars of the charge are that the appellant together with 2 other co-accused Philip Muthomi and Patrick Kimathi on 18th May 2016 at Matakiri village in Tharaka Nithi South within Tharaka Nithi County jointly with others not before court robbed Julius Kiria Kathenya (hereinafter to be referred to as the complainant) cash money Kshs.78,200/-, mobile phone Nokia valued at the Kshs.3,100 and 15 Kg of sugar valued at Kshs.1500/- and at the time of such robbery beat the said Julius Kiria Kathenya.

2. The appellant did deny the charge but the trial court found him guilty after trial, and convicted him and sentenced him to serve death sentence. He felt aggrieved by the decision and preferred this appeal.

Background:

3. Before I delve on the grounds of appeal in this appeal a brief summary of the case facing the accused and the decision of the learned trial magistrate is necessary.

The complainant at the trial court gave a chronology of events of that material day of 18th May 2016. He stated that he was travelling home at around 8. 30 pm on a boda boda ridden by one Mr. Saina when along the way they found that the road had been barricaded with stones by some people and that the appellant emerged and from a crowd and switched off the motorcycle after the rider failed to switch it off as directed.He further stated that he was hit on the head by the appellant and one Mr. Miriti as a result of which he fell off from the motorbike. He added thatthe motorcycle rider rode off and he was beaten till he lost consciousness. He recalled that he had 15 Kg of sugar valued at Kshs.1500, a Nokia phone valued at Kshs.3,300 /=and cash Kshs.78,200/- which he lost. When he regained consciousness, he found out that he had been tied up and so he untied himself before running and that as he was running he tripped and fell into a river where again the appellant, Muthomi, Kimathi co-accused and others beat him accusing him for being a thief. He testified that for his safety he ran to Muthengi's house where the area chief was called.

4. The complainant's evidence that he ran for help to Muthengi's house was corroborated by PW2 Francisco Muthengi Gaichu who confirmed that the complainant ran into this house with a mob in hot pursuit and identified the appellant as one of the people who pursued the complainant to his house.

5. David Makinyi Mugwika,(PW3) the then area chief also testified and told this court that he was called on the material date by one Njeru Makembo and informed of the attack of the complainant and that when he reached the scene, near Bondeni Market he found a large group of people among them the appellant who reportedly told him that they had apprehended the complainant for threatening to kill the appellant herein. He added that he found the complainant at Mutheng's home who reportedly told him he had been attacked and some money, sugar and mobile phone taken from him. This evidence further was corroborated by James Mugwika Gaichu (PW5) who told the trial court that he also responded to the screams by the complainant and rushed to the scene where he found a mob surrounding him with appellant standing next to him with a rope.

6. The prosecution called a clinical officer Emilio Mwenda Gaichu (PW6) who tendered evidence that showed that the complainant was found to have injuries to the head, chest and left forearm. She tendered P3 signed on 7th June 2016 as P. Exhibit 1.

7. The proceedings from the lower court shows that the trial court was notified by PW8 (PC John Mbare) that the investigating officer one Corporal Grace Opiyo had passed on and he took over the file and merely told the court what the late Corporal Grace Opiyo did upon receiving a report from the complainant. He told the trial court that he did not carry out any investigation regarding the case facing the appellant and his co-accused.

8. When the appellant was placed on his defence, he denied committing the offence. According to him, he was a pastor of Glory of God Ministry where the complainant had been a member of his congregation for 7 years before he was defrogged on account of inciting other members of the church and peddling lies. According to the appellant, the complainant was displeased with him and threatened to revenge by making sure he does not preach in that church again. He further told the trail court that what followed was insults, threats to his life and abusive messages from the complainant.

9. The Appellant further told the court that on the material date, he was attached by the complainant and when he raised alarm, complainant ran off to a bush upon which he reported the matter to the sub-chief and police station where he was given a OB Reference No.22/18/05/2016. He was given a letter by the OCS to take it to the chief so that the complainant could be arrested. According to him the chief received the letter at around 6 pm that material day and that after giving the letter to the area chief, he proceeded to his parents home and that people in the locality decided to go and apprehend the complainant themselves as they had heard him threaten to kill him. He told the trial court that he was the one who rescued the complainant because he stopped people from beating him up and that he was the one who called both the area chief and OCS Marimanti telling them what had transpired. He added that he later went to the police station to record statements but that the police refused to record statements of his witnesses. The appellant reported that he was arrested after one week and later charged.

10. The appellant's version of what transpired during the material time was corroborated by Benson Mwiti Gitage (DW4). He testified that on the material day he was riding a bicycle behind a motorcycle carrying the complainant and that on reaching Bondeni the pillion passenger got off the motorbike and ran off to Muthengi's house when he noticed a mob was waiting for him. According to him the crowd gave chase and later the Area Chief came and told the pastor (appellant) herein that he should not have arrested the complainant without going to the police to report.

11. Denisia Karimi (DW5) testified on behalf of the appellant and told the trial court that she was a member of church where the appellant was a pastor and that the complainant had some differences with the church which made him to be expelled. According to her, the complainant was quite displeased and threatened the pastor that he would kill him. The evidence was also corroborated by the evidence of Alice Gakii (DW6) who testified that he found the complainant throwing stones at the appellant on the material date at around 11 am. This was further corroborated by Ann Muthingu (DW7) and Nkari Msafiri (DW8).

12. The trial court evaluated the evidence and found that the appellant had through his evidence placed himself at the scene of crime and that he did not exonerate himself from the allegations that he was leading a mob that attacked the complainant and robbed him of his mobile phone, 15 kg of sugar and a sum of Kshs.78,200/- on the material date. The learned trial magistrate found that the evidence against the 2nd and 3rd accused who had raised alibi as a defence was insufficient to sustain a conviction.

13. The trial court further held that the motive of the appellant in leading a mob that attacked and robbed the complainant was irrelevant because an offence was committed and found the appellant guilty of the offence charged.

14. The appellant was dissatisfied and preferred this appeal raising the following grounds namely:-

(i) That the honourable trial magistrate erred in law and fact by convicting the appellant for an offence which was not proved beyond reasonable doubt.

(ii) That the honourable trial court erred in law and fact by failing to find that the circumstances leading to the appellant's identification was free from error.

(iii) That the honourable trial court erred in law and fact by failing to analyze the defence leading to miscarriage of justice.

(iv) That the principles of sentencing were not followed leading to harsh and excessive sentence against the appellant

(v) That the whole Judgment was without basis both in law and fact.

15. The appellant has through counsel submitted that the prosecution's case was not proved the required standard. He has contended that one of the prosecution witness, the Area Chief (PW3) acknowledged receiving a letter to arrest the complainant in the trial on account of a repot made to Marimanti Police Station by the appellant but instead of arresting the culprit, the appellant was arrested instead and that the witness did not give reasons why he did not effect the arrest.

16. The appellant has faulted the prosecution for not calling one Saina who was reported to have taken the complainant to the scene on his motor bike. According to the appellant Mr. Saina should have shed more light to what transpired when he dropped his pillion passenger and that without such corroborating evidence, it was not safe for him to be convicted.

17. The appellant has further contended that he was not accorded the right to legal representation when the charge facing him was serious. He has also faulted the trial Magistrate for not evaluating his defence and the evidence tendered by his witnesses.

18. The appellant has also faulted the learned trial magistrate for postponing the delivery of Judgment for three consecutive occasions with no reasons being given for differrement of Judgment.

19. The Respondent through learned counsel Mr. Machirah opposed this appeal. On the question of defferement of the date for delivery of judgment the respondent replied that the trial court gave reasons for differing of the date on two occasions as follows;

a) On 31st August 2017 Judgment was deffered because of power blackout.

b) On 23rd October 2017, Judgment was deffered because of the absence of the prosecutor. It was however conceded that no reasons were given for deferment on 14th September 2017 and on 2nd October 2017. However he faulted the appellant for not raising any objection to the deferment of Judgment. The Respondent has contended that failure to give reasons for deferment of the Judgment may be a default on the part of the trial court but it is argued that default should not be visited upon the prosecution’s burden of proving their case which burden he submitted was otherwise discharged. It was further submitted that an error on the part of the court in that regard is a mistrial which can only lead to a retrial and not acquittal. The Respondent however maintained that this is not one of the cases that merit re-trial because the prosecution discharged their burden and proved the case beyond reasonable doubt.

20. It was the Respondent’s contention that the prosecution was required to prove two things against the appellant to sustain a conviction.

(i) theft

(ii) violence

The Respondent submits that the incident occurred at night but the light in a nearby shop was sufficient to recognize the appellant as one of the attackers who attacked and robbed the complainant.

It is further contended that the complainant was a member of the appellant’s church and had been a member for 7 years apart from being a neighbour. This therefore according to the Respondent meant that the complainant was well familiar with the appellant.

21. The Respondent further submits that the appellant did admit being at the scene at the material time therefore placing himself squarely at the scene of crime. The Respondent contends view that the attack was premeditated and members of the appellant’s church planned to attack the appellant because of an existing grudge arising out of defrogging of the complainant.

22. The Respondent submits that they were able to table evidence showing that the complainant was attacked and robbed and in the process sustained injuries which were proved by medical evidence tendered. It is also contended that the appellant was in the company of more than one person and that there was a common intention by those persons to commit the said offence. Mr. Machirah cited the provisions of Section 21 of the Penal Code and urged this court to find upon inference that where several persons with a common intention commits an offence, each person named should be found personally and individually responsible and guilty of the offence committed. The Respondents contends that the appellant was the ringleader of the mob that carried out the attack because he was the one giving orders and directions.

23. This court has considered this appeal and the submissions by both counsels.

The appellant as observed above was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code that provisions provided that the offence of robbery with violence is deemed to be committed if any of the following conditions exists namely:-

a) If the offender is armed with any dangerous or offensive weapon or instrument, or

b) If in the company with one or more other person or persons or

c) If at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes, or uses any other personal violence to any person.

The important of elements in that offence are therefore;

(i) Taking property unlawfully (stealing) from a person by force or threat of force.

(ii) Trying (i) above with any condition or ingredients in a, b, or c above.

(iii) Recognition or connecting the accused person with (i) and (iii) above.

24. This appeal raised two issues for determination namely;

a) Whether the prosecution proved their case.

b) Whether the trial court considered the defence.

25. The Respondent maintains that they proved their case beyond reasonable doubt against the appellant which is denied by the appellant. The first question posed in regard to the definition of the offence as described above then is whether there was robbery. Did the prosecution really proved that the complainant was robbed before we consider the 2nd element of violence or the other ingredients? There is no denying from the evidence tendered that an incident occurred involving the complainant and the appellant on the material time and date (18th May 2016) but what was this incident? Was it robbery as the respondent states or it was an incident where a crowd of people involved with the pastor wanted to arrest or apprehend the complainant? The complainant (PW1) stated that he was on his way to his place of business riding on boda boda ridden by one Mr. Saina when they were confronted by a mob who had blocked a road and that the appellant went and switched off the motorbike before hell broke loose where he was beaten until he fell unconscious. When he recovered consciousness he found out that he had been tied but somehow managed to break free and ran to (PW2) Muthengi’s house for safety. According to him he was being accused of theft.

26. On the other hand, the appellant stated that on the same date on 18th May 2016 at around 11 a.m, he was accosted and attacked by the complainant and attacked because of some differences that had been simmering between the two for some time. According to him he reported the matter at Marimanti Police Station who issued a letter to the area chief to assist in apprehending the complainant. The appellant went further to say that at the material time he met the complainant who openly started threatening him and as he walked away some concerned people walked towards the complainant to find out what his problem was. That appears to what caused the commotion in my view because I have keenly gone through the evidence of the complainant and I find that there some loose ends that clearly shows that his story did not add up. For one he stated that he was hit and fell off the bike and was beaten until he lost consciousness but somehow heard the appellant give out instructions that he be tied up. He further stated that when he came he found himself tied meaning he did know how and who tied him up.

Secondly he does not explain how he managed to break free and escape from a riotous mob baying for his blood if it is true that he had been labeled a “thief”. Ordinarily if a mob descends on a person at that hour of the night, chances of survival in normal ordinary instances are remote leave alone letting “the thief” break free and escape as the complainant led the trial court to believe.

Thirdly and most important is failure by the prosecution to avail the boda boda rider, one Mr. Saina who was reportedly to have been in the process of dropping the complainant when the appellant confronted them by switching off the motorcycle. The prosecution should have availed that witness to help tie the loose ends in their case but for reasons best known to them they did not and the question posed is, did the prosecution realize that that the motor cycle rider’s evidence could adversely affect their case? It is now settled that though it is the prerogative of the prosecution to summon whatever evidence and whosoever they wish to summon to prove their case, but failure to summon a crucial witness can lead the trial to make an inference that the evidence of the crucial witness not called was adverse to the prosecution’s case. That is the position this court finds itself in and the trial court misdirected itself when it omitted to make this observation.

27. Another piece of evidence that was not properly considered was the evidence of David Makunyi Mugwika (PW3). His evidence in chief did not include the part that earlier in the day he had received a letter from the OCS through the appellant requiring him to arrest the complainant. He told the trial court during cross-examination he had promised to arrest the complainant that day and that he had escorted him to police and had told the appellant to find the complainant at the police station the following day. The appellant’s evidence to that extent is in tandem with the evidence given by the Area Chief (PW3) and if that is what had taken place what really happened to the extent that the tables got turned against the appellant who was supposed to be complainant in the first place? The evidence of Francisco Muthengi (PW2) is also telling because he told the trial court in his evidence that the mob that had pursued the complainant to his house told him that they wanted to kill the complainant or take him to the police and he told them to escort them to the police.

28. The above evidence in my view is not consistent with the finding of the trial court and the submissions by Respondent in this appeal which is that the prosecution proved beyond reasonable doubt that the appellant is guilty of the offence charged. This court find that that finding was erroneous because there was evidence casting some serious doubts about the prosecution’s case. The evidence of PW3, the Area Chief for one provided fodder for doubts about the prosecution’s case even before considering the defence put forward and the evidence adduced from defence witnesses. The Area Chief clearly admitted there was more to the case than what was before court. Although the Area Chief did not elaborate what he knew about the two, what later came out from the defence and his witnesses clearly showed that there was bad blood between the Appellant and the complainant. Evidence was tendered which clearly showed that the appellant was a pastor in a local church namely “Glory of God Ministry,” where the complainant was once a member.This was a fact conceded even by the complainant during cross-examination although he had initially denied knowing that the appellant was a pastor only to concede a few minutes later. This in my view casted doubts about his credibility but what is telling is the fact that it is apparent from the evidence placed before the trial court that there was no love lost between the appellant and the complainant perhaps due to the explanation given by the defence that relationship deteriorated when the complainant was defrogged and expelled from the church. That explains why the police in the first place found basis to ask the Area Chief to help in apprehending the complainant.

29. Of course there is no denying the fact that there appears to have been a commotion at Bondeni on the material date perhaps caused by the supporters of the appellant who could have incensed with insults and attacks subjected to their pastor by the complainant. This might have led to the supporters using force to try and either apprehended the complainant after they were told that there was a “warrant of arrest” which had been handed to the chief and perhaps some may have been overzealous and went beyond legal boundaries and might have hurt the complainant in the process of “arresting” him. That is why PW2 says that he was tied or that the mob came with a rope wanted to “either kill the complainant or take him to the police”. The manner in which the appellant and his supporters in apprehending the complainant may have been wrong and unlawful. Indeed an offence may have been committing like assault but the offence amount to robbery with violence? Certainly not.

30. The Respondent has submitted that there was common intention by the appellant and others not before court to commit the offence for which he was charged and convicted. But did the appellant, a pastor and his congregation really set out to violently rob the complainant? That is a remote proposition and I find it a bit spurious given the evidence tendered before the trial court. There was nothing placed before the trial court that the appellant and his congregation formed a common intention to commit the offence for which he was later charged with. It is possible, as I have observed above that the appellant and his group may have cornered and confronted the complainant but the question is was evidence tendered to prove beyond reasonable doubt that they all had a common intention to rob the complainant such that the appellant as their leader being their pastor can be held to have committed the offence in furtherance of that common purpose. That in my view was doubtful given the circumstances and it is trite law that where doubts is created in a criminal case, the accused person is given the benefit of that doubt. Serious doubts in my view emerged from the defence case and the evidence tendered by the witnesses who testified on behalf of the applicant. This brings this court to the next issue in this appeal which is whether the trial court really considered the statement of defence given on oath and witnesses' testimony on what had rally transpired.

31. The trial court in my view only considered the part of the defence that positively placed the appellant on the scene of crime. The purpose of his presence in the scene was not properly evaluated and that is where the court fell into error. The learned trial magistrate merely narrated the evidence given by the witnesses without properly directing himself by putting the evidence on the scales of justice by comparing the narratives with the narratives given by the complainant and prosecution’s other witnesses. The evidence of Denisia Karimi (DW5) though wrongly indicated as DW4 in the proceedings) for example was telling in the sense that she informed the trial court that the complainant had tried to incite other members of the church against their pastor (the appellant) and when he was expelled he threatened to either kill him or ensure that he does not preach again in that church. Now the question that the trial court did not address is whether the complaint launched by the complainant that he had been robbed was in furtherance of threats he had earlier made.

32. The evidence given by Alice Gakii (DW6) though wrongly listed as DW5 in the proceedings was material and should have been considered by the trial court. Unlike the other defence witnesses she was not a member of the appellant’s church as she testified that she was a catholic and that she witnessed the complainant attacking the appellant on the road on the material day at around 11 am. This clearly corroborated the evidence of the appellant and his other witnesses. That same evidence not having been seriously challenged should have formed the basis of doubts in the mind of the trial court and had the learned magistrate properly directed itself on the weight of the defence his finding would obviously have been different. This court finds that on that appellant’s assertion that his defence was not considered is well grounded.

33. Before I finalize the decision of this court, this court was invited to render a decision on the fact that the trial court for unspecified reasons deferred the Judgment. This was not one of the grounds in the appeal so the appellant really could not have relied on this ground without leave but I would have found the ground a legitimate basis of concern. A trial court should always endeavour to deliver Judgment on the given time but if on the given time the judgment cannot be delivered for unforeseen circumstances, it should record reasons for not delivering the judgment as scheduled, because failure to indicate reasons why the same was not delivered like as was in this instance places a court in a bad situations because speculations even wrongly are bound to arise and that at times can lead to a mistrial because an accused person has a right to a fair trial. A key component to a trial is to conclude a trial without unreasonable delay (Article 50(1)(e) of the Constitution.) This right entail determination of the trial expeditiously. In this instance trial concluded on 1st August 2017 Judgment was scheduled for 31st August 2017 but on 31st August 2017 the judgment was not delivered reasons given are as follows;

“ The Judgment cannot be printed owing to a power blackout,”

That meant that the learned trial magistrate had written the Judgment and was ready only that it could not be printed because of a power blackout and the question is why was it not delivered then printed later when the power came back. This is not explained. On 14th September, 2017 when the Judgment was scheduled to be delivered, again it was not and this time no reasons are given. It was inexplicably rescheduled for 2nd October 2017 when again without any reason given deferred to 13th October, 2017. On that date Judgment was again was not delivered and this is a Judgment which was ready to be delivered on 31st August 2017. Further deferments were made on 23rd October 2017 and 6th November 2017 and eventually delivered on 9th November, 2017. The deferment in my view was unreasonable and the appellant had every legitimate reason to raise that his right to a fair trial was infringed. As I have observed if the ground had been competently raised and taken in this appeal have found basis to declare trial against the accused was mistrial on account of that unexplained delay that impacted negatively on his right to a fair trial.

34. Having said that, this court finds that this appeal has merits. The prosecution’s case for the reasons aforesaid was not proved beyond reasonable doubt. Doubts existed in the prosecution’s case. As I have re-evaluated the evidence there were doubts if the complainant was really robbed or it was a question of sour grapes and settling old scores by the complainant. Had the learned trial magistrate properly considered the defence put forward by the appellant and his witnesses, on the very least he could have casted doubts (so apparent in the evidence) about the culpability of the appellant. By failing to do so he fell into error and hence the merit in this appeal. In the premises, I find merit in this appeal. I allow it. The conviction and the sentence meted out against the appellant are both reversed and set aside. The appellant shall be set free forthwith unless otherwise lawfully held.

Dated, signed and delivered at Chuka this 26th day of July, 2018.

R.K. LIMO

JUDGE

26/7/2018

Judgment signed, dated and delivered in the presence of Muchomba holding brief for Miriti for Appellant and Machirah for Respondent.

R.K. LIMO

JUDGE

26/7/2018