[2022] KEHC 1578 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KABARNET

CRIMINAL APPEAL NO 12 OF 2019

STEPHEN KIMELI KIMARU.......1ST APPELLANT

DAN RUTTO...................................2ND APPELLANT

VERSUS

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

(Being an appeal from the judgement of Hon J. L. Tamar, PM, dated 11th February 2019 in Criminal Case No 429 of 2017 in the Principal Magistrate’s Court at Eldama Ravine, Republic v 1. Stephen Kimeli Kimaru 2. Dan Rutto)

JUDGEMENT

In their petitions to this court, the appellants have appealed against their conviction and sentence of twenty years imprisonment in respect of the offence of robbery with violence contrary to section 295 as read with 296 (2) of the Penal Code (Cap 63) Laws of Kenya.

Counsel (Messrs Nyagaka S.M. & CO Advocates) for the appellants have raised fourteen grounds in his petition of appeal to this court. In ground 1 counsel has faulted the trial court in law in ignoring a cardinal rule in criminal procedure that the burden of proof lies on the prosecution and that they must prove each and every ingredient of the charge beyond reasonable doubt.

In support of their case the prosecution called Sharon Kibet (Pw 1), who is the complainant. Pw 1 testified that on 14th June 2017 at around 8. 00 pm she boarded a matatu registration No. KBE 527M from Mogotio to Kabarak University. There were no passengers in that matatu except the two appellants. The first appellant was the conductor and the second appellant was the driver. They left for Nakuru. Upon arrival at Mogotio slaughter house the 1st appellant told Pw 1 that they wanted to pick something at that slaughter house. Both appellants alighted at that house and talked to a person who was unknown to Pw 1. They then returned into the matatu and proceeded with the journey.

Pw 1 continued to testify that upon arrival at Kuresie the 1st appellant said that he wanted to drop a machine that was on top of the matatu at a house in that area. They drove for about two kilometers through a rough road and stopped at a certain place. The 1st appellant told Pw 1 that the matatu owner had told them that they cut short the journey and should park the matatu at home.

Pw 1 told them to take her to school. They refused. Pw 1 then opened the door and ran back towards the main road. The 1st appellant followed her and tripped her. As a result, she fell down. The 1st appellant held her by the hair. He pulled her braids which were she identified and were later produced as exhibit 1.

PW 1 screamed and a person from the neighbourhood responded and went to rescue her. This person flashed the torch and as a result the 1st appellant ran away. The 1st appellant took her phone OPPO A 37 F make worth shs 27,990/-, in regard to which she produced a receipt which she identified and was later produced as exhibit 3. She also identified her phone which was later produced as exhibit 2.

Pw 1 also testified that the 2nd appellant remained behind in the matatu. The 2nd appellant did not follow her. It was a dark night. Pw 1 further testified that she had not known the two appellants before. She also testified that she was able to see the two appellants at Mogotio slaughter house. The 1st appellant was tall and the 2nd appellant was short.

Pw 1 further testified that the registration number of the matatu was KBE 517 M. Shortly thereafter she corrected herself and testified that the registration number of the matatu was KBE 527 M.

PW 1 also testified that her phone was recovered from the 1st appellant; which he removed from his pocket. Pw 1 further testified that her phone was taken to her by her father.

In addition to Pw 1 the prosecution called Tuchia Kipngok (Pw 2), who is the mother of the Pw 1. Pw 2 testified as follows. She got information from Keter (PW 4) that her daughter had been assaulted and her phone had been taken. Pw 4 mobilized residents and went to search for the appellants. Shortly thereafter the 1st appellant was brought and after ten minutes the 2nd appellant was also brought by the residents. It is the 1st appellant who had the phone of Pw 1.

Pw 2 called her husband who gave the police telephone number. She rang the police who came and found the two appellants held by members of the public.

Kipkemoi Rutto Chepyegon (Pw 3), a herder heard the screams of the Pw 1 that there were people who wanted to rape her. Pw 3 responded by going to the scene. Pw 3 saw a matatu at a distance. The assailant who was with the girl ran away. Pw 3 flashed the torch and he saw the 1st appellant; the latter was the matatu conductor. Pw 3 took the girl to Keter (Pw 4). Keter then called the mother of Pw 1. Pw 3 further testified that he had known the 1st appellant since childhood and that he did not know the 2nd appellant.

Pw 3 further testified that he knew the driver of the matatu, whom he identified in court as the 1st appellant.

Nelson Keter (Pw 4) a business man testified that on the material date he was in his shop at around 8. 30 pm. A person went to his shop in company of a girl whom he had rescued from some people. The girl told him that she was going to Kabarak but the two appellants had detoured her. Pw 4 knew both appellants for over ten years before this incident.

Pw 4 arrested the first appellant first and took him to his shop. The 2nd appellant was brought later. The 1st appellant was found with the phone of Pw 1. Pw 4 testified that he did not have a grudge against the 1st appellant. He also testified that he did not have any land dispute with the 1st appellant.

A clinical officer by the name Edwin Kamurwa (Pw 5), who was based at Mogotio sub-county hospital examined the Pw 1. His findings were as follows. She had a light blue dusty jeans long trousers. She had a grey jumper sweater that was also dusty. She had pain in the knees. There was tenderness in the neck. She had soft tissue injuries secondary to the assault. The treatment notes were produced as exhibit 6. Pw 5 completed the P3 form and proceeded to produce it as exhibit 7.

Pw 1 told him that she was assaulted by the conductor.

Finally, the prosecution called the investigating police officer namely No. 60289 PC Julius Kairethia (Pw 6). While at Mogotio police station the complainant in the company of members of the public and her parents made a report at the said police station. She told Pw 6 that the registration No. of the matatu was KBE 527A. PW 1 told him that it is 1st appellant who attacked her. After completing his investigations Pw 6 charged both appellants with the offence of robbery with violence.

The defence of the 1st appellant- Stephen Kimeli Kimaru

The 1st appellant made an unsworn statement and called no witnesses.

He denied the charge. He testified that on the material date at around 8. 00 pm he was in his house after delivering charcoal at Nakuru using a motor cycle registration No KMDQ 030Q. At around 12. 00 am he had a knock at the door. He opened the door and saw many people who asked him whether he was Kimeli. They arrested him and took him to the tarmac; where he found the 2nd appellant inside a police vehicle. He did not know the 2nd appellant. He was initially charged with stealing but later he was charged with robbery with violence. He further testified that he had no idea about the matatu and that he did not know the owner of the matatu.

The defence of the 2nd appellant- Dan Rutto.

The 2nd appellant made an unsworn statement denying the charge. He did not call any witnesses in his defence. He testified that on14/06/2017 while sleeping in his house unknown people came and woke him up.

Those people told him to accompany them. They took him to the tarmac road. He was taken to Mogotio police station and charged with this offence.

He also testified that he did not know the 1st appellant and that he is a tractor driver. He also denied knowing the owner of the subject matatu and he did not know the matatu itself.

A legal challenge of the witness who was called by the court on its own motion.

After the close of the defence case,the learned Principal Magistrate on his own motion (suo motu) pursuant to the provisions of section 150 of the Criminal Procedure Code (Cap 75) Laws of Kenya, called the owner of the subject matatu regn No. KBE 927M; to testify in court.

The owner of the subject matatu duly came to court and testified. He introduced himself as Erick Ngetich a police officer in Nakuru. He testified as follows.

He testified that the 2nd appellant was the driver of his matatu as at 14/06/2017. He further testified that he did not know the 1st appellant. He also testified that it is the 2nd appellant who paid the 1st appellant.

Issues for determination.

I have considered the entire evidence and the submissions of both counsel in the light of the applicable law. I find the following to be the issues for determination.

1. Whether the constituent elements of the offence of robbery with violence were proved.

2. Whether the offence of robbery with violence was proved beyond reasonable doubt against both appellants.

Issue 1

I find that the offence of robbery with violence is stealing using actual or threatened violence against the victim (also known as the complainant). Additionally, there is an element of the robber being armed with weapon (s) in the course of the robbery. In the instant case the appellants were not armed with any weapons. However, there is ample evidence that the 1st appellant used violence when he pulled the hair braids of Pw 1. There is further evidence that Pw 1 sustained soft tissue injuries to her neck and the knee.

I further find that the 1st appellant was found in possession of the phone of Pw 1 hours after it was stolen from her. In this regard I find as credible the evidence of the herdsman namely Kipkemoi Rutto Chepyegon (Pw 3) that he recognized the 1st appellant as the person who had stolen from Pw 1. I further find as credible the evidence of Pw 1 that she identified the 1st appellant as the person who pulled hair braids. The recovery of the stolen phone from the 1st appellant a few hours after the robbery corroborates the identification of the 1st appellant by Pw 1 and Pw 3. It therefore follows that the identification of the 1st appellant as the person who stole from Pw 1 was positive.

Furthermore, it also follows that the alibi defence of the 1st appellant was disproved by the ample evidence of the prosecution.

There were contradictions between the evidence of Pw 1 and Pw 3 as to whether the 1st appellant was the driver or the conductor of the subject matatu. After evaluating the entire evidence, I find that the 1st appellant was the conductor and the 2nd appellant was the driver. I find that this is a minor contradiction that does not go to the root of the case and further that the contradiction has been resolved by the evidence on record.

Furthermore, I find that the 2nd appellant was convicted on the basis common intention in terms of section 21 of the Penal Code. In this regard, I find that there is no direct evidence to support the finding of the trial court that there existed a common intention between the two appellants to rob Pw1. I further find that there is no basis for drawing an inference that the two appellants had a common intention to steal from Pw 1. I find that the evidence of Pw 1 was that the 2nd appellant remained in the matatu when the 1st appellant followed her and robbed her of her phone.

I find as persuasive the decision of the court in Republic v Wekesa Makhoka & 4 others (2020) e-KLR in which that court observed in relation to the principle of common intention that:

“The use of the word common intention as used in law denotes evidence capable of taking cognizance of the intention and unlawful act combined together. In this case, there is no evidence that the accused formed the intention or committed the unlawful act to perpetrate the crime of murder at Mbirika area to cause the death of the deceased.”

In the instant case I find that there is no direct or indirect evidence to support the finding of the trial court that both appellants formed a common intention to rob Pw 1. I also find as persuasive the observation of the court in Dracaku s/o Afia v Republic (1963) EA 363 that common intention does not only arise where there is a pre-arranged plan or joint enterprise because it can also develop in the course of the commission of the offence. In the instant case there is no evidence that the common intention developed in course of committing the offence of robbery.

Finally, I also find the decision of the court in Dickson Mwangi Munene & Another v Republic (2014) e-KLR, as persuasive that common intention may be inferred from the presence, actions and omissions of either of them in the commission of the crime. In the instant case the prosecution did not produce evidence to show that the 2nd appellant was involved in the commission of this crime. I find that the mere presence of the 2nd appellant at the scene of crime per se did not constitute evidence of his involvement in the commission of the offence of robbery. The presence of the 2nd appellant at the scene either as a driver or conductor of the subject matatu was normal given the fact that he was a worker in that matatu and that was not incriminating evidence in any way.

The issue of the trial court calling a witness on its own motion after the defence had closed its case warrants attention. Although section 150 of the Criminal Procedure Code empowers the court on its own motion (suo motu) to call a witness at any stage of the trial if the evidence of such witness is essential to the just determination of the case, the power to do so should be used sparingly. Furthermore, in the circumstances of this case, I find that this was prejudicial to the defence of the 2nd appellant; since he did not have an opportunity to produce evidence to rebut what the owner of the matatu had testified to against him in court. The trial court should have given the 2nd appellant the opportunity to call evidence in rebuttal to that produced by the owner of the matatu, if any, since he had closed his defence case. The evidence of the owner of the subject matatu supported that of the 1st appellant; since he testified that he did not know the 1st appellant. Furthermore, the owner of the matatu testified that the 2nd appellant (Dan Rutto) was his driver. In the interests of a fair trial, it is important that the witness who is called by the court should first record a statement. The statement should then be served upon the accused well in advance before the witness testifies. This will avoid trial by ambush.

As long as the calling of such witness is essential to the just decision of the case, it is immaterial that such evidence supports the prosecution and not the defence case. See Manyaki s/o Nyanganya v R (1958) EA 495.

In the premises, I find that the offence of robbery with violence contrary to section 296 (2) of the Penal Code was not proved because the 1st appellant was not armed with any dangerous or offensive weapon. I find that the offence that was proved is robbery with violence contrary to section 296 (1) of the Penal Code; since the 1st appellant was not armed with any dangerous or offensive weapon

After re-assessing the entire evidence I find that the offence of robbery with violence contrary to section 296 (2) of the Penal Code was not proved against the 2nd appellant with the result that the conviction and sentence recorded against him are hereby quashed. He is hereby ordered set free unless he is held on other lawful warrants.

I find the offence proved against the 1st appellant was robbery with violence contrary to section 296 (1) of the Penal Code; since the 1st applicant was not armed with any dangerous weapon.

Furthermore, the owner of the matatu testified the 2nd appellant (Dan Rutto) was his driver. In the interests of fair trial, the witness who is called by the court should 1st record his statement. The statement should be served upon the accused well in advance before he testifies. This will avoid trial by ambush.

I find as moot or academic to make findings in respect of the remaining grounds of appeal, since the findings in ground 1 have disposed of the appeal. See Attorney General v Ally Klesit Sykes (1957) EA 257

In sentencing the 1st appellant I have borne in mind that he is a 1st offender. I have also borne in mind that the stolen phone was recovered. Furthermore, I find that the 1st appellant has been in post judgement custody for about three years and two months.

I have not lost sight that the 1st appellant used violence against the complainant; who sustained soft tissue injuries.

After taking into account all of the foregoing matters I hereby reduce the sentence of the 1st appellant to that already served with the result that he is hereby ordered set free unless he is held on other lawful warrants.

Final orders

The appeal of the 1st appellant fails and his conviction is hereby confirmed. His appeal against sentence is hereby reduced to the one already served. He is hereby ordered set free unless he is held on other lawful warrants.

The appeal of the 2nd appellant succeeds and his conviction and sentence are hereby quashed with the result that he is hereby ordered set free unless he is held on other lawful warrants.

JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 10TH DAY OF MARCH, 2022

J M BWONWONG’A

JUDGE

In the presence of:-

Mr. Kinyua: Court Assistant

Mr Nyagaka for the appellants.

Mr. Abwajo for the respondent