[2018] KEHC 10000 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL DIVISION

CRIMINAL APPEAL NOS. 138 & 139 OF 2016

(An Appeal arising out of the conviction and sentence of Hon. H.O. Barasa – (PM) delivered on 29th November 2016 in Eldoret CM CR. Case No.229 of 2014)

STEPHEN KEHENGERE......................................................................1ST APPELLANT

FELIX ASENA OKWEMBA..................................................................2NDAPPELLANT

VERSUS

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

JUDGMENT

The Appellants, Stephen Kehengere (1st Appellant) and Felix Asena Okwemba (2nd Appellant) were charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on 11th January 2014 at Manyonyi Village in Lugari Sub-County, Kakamega County, the Appellants, jointly with others not before court, while armed with crude weapons namely rungus, pliers and barbed wires robbed Edwin Ngododi (hereinafter referred to as the complainant) of motor cycle Registration No.KMDC 168Q TVS Star and a Nokia 1200 mobile phone and at the time of such robbery used actual violence to the complainant. When the Appellants were arraigned before the trial magistrate’s court, they pleaded not guilty to the charge. After full trial, they were convicted as charged. They were sentenced to death. They were aggrieved by their conviction and sentence. Each Appellant filed separate appeal challenging his conviction and sentence.

The petitions of appeals raised more or less the same grounds of appeal. The Appellants were aggrieved that they had been convicted on the basis of the evidence of a single identifying witness in respect of an identification that was made in difficult circumstances that was not conducive to positive identification. The Appellants took issue with the fact that they were convicted on inconsistent, contradictory and uncorroborated testimony of prosecution witnesses. In particular, they were aggrieved that they had been convicted on the basis of prosecution’s evidence that did not establish their guilt to the required standard of proof beyond any reasonable doubt. They were finally aggrieved that their respective defences were not taken into account before the trial court reached the impugned verdict. In the premises therefore, the Appellants urged the court to allow their respective appeals, quash their convictions and set aside the sentence that was imposed upon them.

During the hearing of the appeal, the two separate appeals lodged by the Appellants were consolidated and heard together as one. The Appellant presented to court written submission in support of their respective appeals. They also made oral submission urging the court to find that the prosecution had failed to prove the charge brought against them to the required standard of proof. The thrust of their submission was that the circumstances in which the complainant testified that he identified them was not conducive for positive identification. It was at night. The complainant was attacked by a group of more than five (5) men. It was not clear from his testimony how the complainant was able to be positive that he had identified the Appellants when the source of light was not disclosed in the original statement that the complainant made to the police. The 1st Appellant submitted that since the robbed items were not recovered, there was no other evidence that connected him to the robbery other than the incredible evidence of the complainant.

On his part, the 2nd Appellant challenged the identification parade that was carried out after his arrest. He submitted that it was not conducted in accordance with the rules and therefore his alleged identification by the complainant in a police identification parade could not be admitted into evidence. Both Appellants challenged the complainant’s version of what allegedly took place on the material night of the robbery. They denied that they were involved in the robbery. In fact, they gave alibi defence by asserting that they were elsewhere at the time the robbery incident occurred. They urged the court to allow their respective appeal.

Ms. Oduor for the State opposed the appeal. She submitted that the Appellants were known to the complainant prior to the robbery incident. It was the prosecution’s case that the 2nd Appellant hired the complainant to take him to a particular destination. On arriving at the destination, the complainant was accosted by a gang of robbers who assaulted him before robbing him of his motor cycle. The complainant was beaten senseless. He recalled seeing the 1st Appellant at the scene of crime. He was aided by the lights from his motor cycle to identity the 1st Appellant. After the robbery incident, his mouth was gagged before he was thrown into a ditch in a bush. Ms. Oduor asserted that the prosecution had adduced watertight evidence of identification that established that it was indeed the Appellants who had robbed and injured the complainant. She urged the court to disallow the appeals.

This being a first appeal, it is the duty of this court to reconsider and to re-evaluate the evidence adduced before the trial court so as to reach its own independent determination whether or not to uphold the conviction of the Appellants. As was held by the Court of Appeal in Njoroge –Vs- Republic [1987] KLR 19 at P.22:

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570)”.

In the present appeal, the issue for determination by this court is whether the prosecution established the case against the Appellants on the charge of robbery with violence contrary to Section 296(2) of the Penal Code to the required standard of proof beyond any reasonable doubt.

In the present appeal, it was evident that the prosecution relied on the sole evidence of identification in its bid to secure the conviction of the Appellants. The complainant in this case narrated how he was called and requested to take the 2nd Appellant to his home. The complainant is a boda boda rider. He was employed by PW3 Daniel Kipkase to operate his motor cycle as a taxi. The 2nd Appellant was known to the complainant prior to that date. The complainant testified that the 2nd Appellant used to be his customer. The complainant recalled that on the material day of 14th January 2014 at around 8. 00 p.m., after receiving the call, he went and picked the 2nd Appellant at a place called Kipkaren. He was to take the 2nd Appellant to his home at a place called Manyonyi.

The complainant testified that when he reached at the destination he saw about five (5) people outside the gate which was their destination. He knew some of the people. He identified the 1st Appellant by name. He referred to him as Stephen. He told the court that he was able to identify the 1st Appellant and another man by the name Vidambwa (who was the Appellants’ co-accused in the trial court – he however died before the conclusion of the trial and the charge against him was abated). He stopped the motor cycle. He called out Vidambwa by his name. He was surprised when he was hit on the neck with a rungu. The passenger whom he had just brought (2nd Appellant) joined the gang in assaulting him. They removed his clothes and stuffed his underwear in his mouth before tying his mouth using a barbed wire. They used pliers. They did this to prevent the complainant from raising alarm.

The complainant was then taken to a nearby bush and dumped into a ditch. He lost consciousness. When he came to, he was able to remove the cloth that had been stuffed in his mouth. He raised alarm. PW2 Fred Amadiva Shiloanga, whose house was nearby, heard the complainant’s cry for help. He went to the complainant’s assistance. The police were called. The complainant was rushed to Lugari District Hospital where he was admitted. Two days later, PW2 visited him at the hospital and saw that he had sufficiently recovered. He told him that he was a victim of robbery on the material night. The complainant testified that during the robbery incident, he was robbed of motor cycle and his Nokia 1200 mobile phone. Both items were not recovered.

A report was made to the police. The complainant told the police that he was robbed by the Appellants whom he told the police he could identify. He mentioned the 1st Appellant by name. He was arrested and taken to the police. As regards the 2nd Appellant, police identification parade was carried out wherein the complainant pointed out the 2nd Appellant as the customer who lured him to the scene of the robbery. When they were put to their respective defences, the Appellants denied that they had robbed the complainant on the material night. The 1st Appellant told the court that on the material night of the robbery he was at his place of work at Lumakanda. He denied the complainant’s evidence that he had identified him on the night of the robbery.

On his part, the 2nd Appellant attributed his troubles to a difference he had with one Enos Kharuga who was harassing his wife for sexual favours. He told the court that when he told off the said Enos, he promised that he would make him pay. It was this Enos who pointed him out as one of the robbers. He was subsequently arrested by the police. He denied robbing the complainant.

This court is aware that in cases where the prosecution case is based solely on the evidence of identification by a single witness, the court must warn itself of the dangers of convicting an accused person on the basis of such evidence noting that there is a possibility that such identifying witness may be honest but mistaken. As was held by the Court of Appeal in Maitanyi –Vs- Republic [1986] KLR 198 at P.200:

“Although the lower courts did not refer to the well-known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition:-

“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error”.

This court having so warned itself, reached the determination that indeed the complainant had identified the Appellants as being members of the gang that robbed him on the material night. Both Appellants were known to the complainant prior to the robbery incident. The 2nd Appellant hired the complainant to ferry him from Kipkaren to Manyonyi. The 2nd Appellant was a frequent customer of the complainant. Although the complainant did not at the time know him by name, he knew him by virtue of previous interaction. When the 2nd Appellant was arrested, the complainant had no difficult in pointing him out in an identification parade conducted by the police. As regard the 1st Appellant, the complainant identified him by name to the police. The identification of the Appellants by the complainant was aided by the motor cycle headlights and the fact that the complainant interacted with the two Appellants at close quarters before they robbed him of the motor cycle.

The complainant’s identification of the Appellants was not that of a stranger identifying another stranger: rather, it was a case of someone familiar with the Appellants recognizing them. This was a case of recognition rather than mere identification. The dicta in the case of Anjononi –Vs- Republic [1980] KLR 54 at P.60 applies. The Court of Appeal held thus:

“Being night time the conditions for identification of robbers in this case were not favourable. This was however a case of recognition not identification of assailants; recognition of an assailant is more satisfactory, more reassuring, and more reliable than identification of a stranger because he depends upon personal knowledge of the assailant in some form or other.”

Although it was at night, this court has no doubt in its mind that the complainant indeed recognized the Appellants as being members of the gang that robbed him. The Appellants’ appeal against conviction therefore lacks merit and is hereby dismissed.

As regard sentence, it was clear to the court that the Appellants intended to kill the complainant or cause him injuries of a permanent nature. That being the case, the death sentence that was imposed fitted the crime. Although this court now has jurisdiction to review the Appellants’ sentence, this court is not convinced that the Appellants are deserving of such review because their crime was premeditated. It was heinous. Their respective appeals against sentence are similarly dismissed.

The conviction and sentence of the trial court is upheld. It is so ordered.

DATED AND SIGNED AT NAIROBI THIS 26TH DAY OF SEPTEMBER 2018

L. KIMARU

JUDGE

DATED, SIGNED AND DELIVERED AT ELDORET THIS4TH DAY OF OCTOBER 2018

HELLEN OMONDI

JUDGE