[2015] KECA 420 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MUSINGA, GATEMBU & MURGOR, JJA.)

CRIMINAL APPEAL NO. 575 OF 2010

BETWEEN

STEPHEN KHAEGA ATAKHA …………..........…....….……….. APPELLANT

AND

REPUBLIC ………………………..…………..……....……….. RESPONDENT

(Being an appeal from the judgment of the High Court of Kenya at Kakamega, (Onyancha, Lenaola, JJ.) dated 30th November, 2010

in

H.C.CR.A. NO. 197 OF 2009)

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JUDGMENT OF THE COURT

1. The appellant herein was convicted on two counts of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to death as by law provided. The particulars of the first count were that on the night of 6th February, 2007 at Sisecheli Market, Eregi Location in Kakamega District, jointly with others not before court, while armed with dangerous weapons namely, pangas and rungus, robbed Janifer Imbosa of K.Shs.80,000/= and other assorted items and at or immediately before such robbery used actual violence to the said lady.

2. The particulars of the second count were that on the same day and place as in the first count and in similar circumstances, the appellant robbed Collins Litunda of cash K.Shs.6,000/= and also injured him.

3. The appellant's first appeal to the High Court was unsuccessful,hence this second appeal. On a second appeal the court's jurisdiction is limited to a consideration of issues law only.

4. Although the appellant's memorandum of appeal drawn and filed by E. W. Odhiambo Advocate consisted of four grounds of appeal, when the appeal came up for hearing, Mrs. Odhiambo, learned counsel for the appellant, told the court that she was abandoning grounds 1, 3 and 4 and would only argue ground 2 of appeal which was framed as follows:

“2. That the learned judges erred in affirming the conviction of the appellant which was based on mere presumptions without the evidence of essential witnesses, arresting officer, investigating officer and medical personnel).”

5. Mrs. Odhiambo did not contest the fact that the two complainants, PW 1 and PW 2, were injured during the robbery, as a result of which they were taken to Kakamega General Hospital for treatment. The appellant's complaint was that both the trial court and the first appellate court believed that the complainants had been injured during the robbery yet no doctor or clinical officer was called as a prosecution witness to testify about the complainants' injuries and produce their respective P3 forms.

6. In her judgment, Mrs. Ong'undi, the learned trial magistrate (as she then was), stated as follows:

“The complainants PW 1 and PW 2 were seriously wounded by their attackers as could be seen from the scars they had as they testified before this court. Even if no P3 forms were produced I believe that they were wounded. Coupled with the number of attackers that were present and the crude weapons that they carried, I am satisfied that an offence called robbery with violence contrary to section 296 (2) CPC was committed.”

7. The appellant's counsel faulted the High Court judges (Onyancha and Lenaola, JJ) for comitting the same error as the trial magistrate. The learned judges delivered themselves as hereunder:

“27. There was however the issue raised by the appellants and learned Senior State counsel that there was no medical evidence to show the nature of violence meted out. We have considered that matter and we note that the trial magistrate was alive to that issue as well as failure to call the investigating officer. She rendered herserlf as follows:

“Though the investigating officer did not testify, I do not find it to have affected the prosecution case. The witnesses who testified are credible witnesses. I find (sic) case against the accused persons proved beyond a reasonable doubt. For my part I find them guilty and convict them as charged.”

Can we fault that finding?. We cannot do so. The two witnesses showed the court the scars from the injuries sustained, and the court believed them and found them to be credible. We are also convinced that where more than one robber,armed with weapons, clearly seen by their victims, use those weapons and injuries are inflicted and items stolen, then the charge of robbery with violence has been properly founded.

8. Mrs. Odhiambo submitted that the prosecution did not prove beyond any reasonable doubt that in the process of the robbery personal violence was visited upn the complainants and therefore, in her view, the offence of robbery with violence was not proved.

9. Counsel cited this court's decision inSTANLEY KHAEGA ATAKHA V REPUBLIC, Criminal Appeal No. 575 of 2010, where the appellant was convicted of robbery with violence but no medical evidence had been adduced in support of the complainant's claim that he had been attacked and injured. The court held:

“It was incumbent upon the prosecution to prove that the appellant was a member of a gang and that actual violence was used … Medical evidence is necessary to establish the fact of assault on the complainant and of the robbery itself. In the absence of this evidence the case becomes one of simple theft.”

10. Mr. Ogoti, Senior Assistant Deputy Public Prosecutor, submitted that the offence of robbetry with violence as defined under section 296 (2) of the Penal Code consists of several ingredients, and proof of at least one on them is sufficient. In the case that was before the trial court, the prosecution had proved that the appellant was accompanied by other robbers, that they were armed with dangerous weapons, and that they had inflicted bodily injuries to the two complainants.

11. Mr. Ogoti added that it was not mandatory for the prosecution to summon as a witness the investigating officer and the doctor who filled the complanants P3 forms. He urged the court to dismiss the appeal.

12. We have considered the submissions on record. Although the appeal before us is not unique, whichever way one looks at, considering that most of the criminal appeals that are handled by this Court relate to convictions for robbery with violence contrary to section 296 (2) of the Penal Code,we deem it necessary to reproduce both sections 295 and 296 of the Penal Code. The two sections state as follows:

“295 Any person who steals anything, and, at or immediately before or immediatey after the time of stealing it,uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

296 (1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.

(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or 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, he shall be sentenced to death.”

13. This Court has severally pronounced itself on the ingredients of the offence of robbery with violence. In OLUOCH V REPUBLIC [1985] eKLR the Court held that robbery with violence is committed in any of the following circumstances:

“(a). The offender is armed with any dangerous or offensive weapon or instrument; or

b). The offender is in company with one or more person 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.”

14. In MOHAMED ALI V REPUBLIC [2013] eKLR the Court stated that “the use of the word “OR” in this definition means that proof of any of the above ingredients is sufficient to establish an offence under section 296(2) of the Penal Code.”

15. Both PW 1 and PW 2 testified that they were attacked by a gang of robbers who were armed with pangas and rungus. The robbers included the appellant whom they positively recognized since he was a person they were well acquainted with. The two complainants testified that they were injured by the robbers and had to be treated at Kakamega General Hospital. The prosecution had to close its case before calling a witness from the said hospital who had examined the complainants as well as the investigating officer. The two witnesses were not in court on the material day and the trial magistrate had already granted the prosecution several adjournments.

16. In the circumstances of this appeal, we do not agree that the failure to call the two witnesses was fatal to the prosecution case so as to render the charge of robbery with violence unproved. As regards the violence that was visited upon the complainants, the trial court as well as the first appellate court were right in finding that the evidence of PW 1 and PW 2 was sufficient, even without production of P3 Forms.

17. Regarding the prosecution's failure to call the investigating officer, we can do no better than cite what this Court held in HARWARD SHIKANGA ALIAS KODOGO & ANOTHER V REPUBLIC [2008] eKLR, that although it is a good practice to have the investigating officer testify and tie all the pieces of evidence together, failue to do so cannot automatcally result in an acquittal. Each case has to be considered on its own circumstances in order to determine the effect of such failure on the entire case.

18. We are satisfied that the appellant's conviction was well founded in law and consequently dismiss this appeal.

DATED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2015

D.K. MUSINGA

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JUDGE OF APPEAL

S. GATEMBU KAIRU FCIArb

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JUDGE OF APPEAL

A. K. MURGOR

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JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR