[2000] KEHC 59 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Criminal Appeal 436, 437, 441 & 438 of 1995

STEPHEN MBONDOLA………………………………APPELLANT

VERSUS

REPUBLIC…………………………………………..RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO.437 OF 1997

FANUEL JUMA………………............………………..APPELLANT

VERSUS

REPUBLIC…………………………….…………….RESPONDENT

CONSOLIDATED WITH

CRIMINAL APPEAL NO.441 OF 1995

FRANCIS WAWERU.................................................. APPELLANT

VERSUS

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

CONSOLIDATED WITH

CRIMINAL APPEAL NO.438 OF 1995

ALI OUMA.......................................................................... APPELLANT

VERSUS

REPUBLIC…………………………………………….RESPONDENT

(All from Original Conviction and Sentence in Criminal Case No.897of 1994 of the Chief Magistrate's Court at Mombasa - Jo-AnneSiganga, Miss - S.R.M.)

JUDGMENT

This judgment relates to Appeals 436, 437, 438 and 441 of1995. They were all consolidated at the request of the StateCounsel and without objection from the Appellants, being appealsfrom the same trial.

Stephen Bondola in Criminal Appeal No.436 is 1st Appellant.Fanuel Juma in Criminal Appeal No.437 is the 2nd Appellant. AliJuma in Criminal Appeal No.438 is the 3rd Appellant. FrancisWaweru in Criminal Appeal No.441 is the 4th Appellant.

The Appellants were charged with Robbery with Violence Contrary to Section 296(2) of the Penal Code. A second count was for Causing Grievous Harm contrary to Section 234 of the Penal Code. They were all convicted of the two counts and sentenced to death on 1st Count and to imprisonment on the 2nd Count.

The prosecution case is that on the night of 28. 1.94 thecomplainant, PW.l ZACHARIA LULAI MWAMBI was asleep in his house inBombolulu Village when at 1. 00 a.m. he heard his watchman raisealarm. He woke up and dressed intending to go out and rescue him.As he was about to open the door he heard a stone crash against thedoor and people were shouting that he should open the door. Heresisted and raised an alarm. He resisted the force to break the door for a period of 30 minutes but finally the door collapsed andopened. The robbers entered and he was shot with three arrows onthe left thigh, chest and right ribs. He fell down on the verandahas he pleaded with the attackers not to kill him but to takewhatever they wanted. At that time some attackers were in thehouse removing things and others were on the verandah. He saw Ouma 3rd Appellant who shot him with arrows. The complainant told him"neighbour, do not kill me" after this the complainant lost consciousness and did not speak further but he had seen 3rd and 5th Accused removing his items from his house. He said he did not see the 1st Appellant (2nd Accused).

The complainant was taken to Hospital where he remained forone week. After he left the hospital he was told by Police that 2suspects had already been arrested. Of the stolen items only aknife was found in the house of Fanuel Juma.

From the evidence, Ali Ouma, Francis Waweru, and Fanuel Jumabroke into the complainant's house. The complainant was able to see them because there was bright moonlight and he had a tin lamp. The circumstances of identification were satisfactory. The incident took at least 30 minutes, probably more. The trialMagistrate considered these factors in her judgment.

Ali Ouma was known to the complainant as he had employed himone time to do some work for him. Stephen Mbondola was also knownto the complainant as he was employed by him in the construction ofhis house.

Fanuel Juma was also well known to the complainant as theyused to sell stones together. The Appellants were also identifiedby the watchman, PW.2, who was attacked and injured. He describedeach of them as he had seen them. Ouma had a bow and arrows. Thisevidence corroborates the complainant who said that Ouma is the onewho shot him with arrows. Ouma was also a neighbour of the watchman.

Stephen Bondola had also visited the complainant's houseearlier in the evening asking for the complainant and the watchmancould recognise him. The watchman also knew Francis Waweru whom hesaid used to pass by the gate.

At this stage it will be noted that the watchman struggledwith the attackers for 30 minutes. There was bright moonlight andthe attackers had torches.

The crucial issue in this appeal is that of identification.

There is no doubt that the 3rd Appellant Ali Ouma wasidentified by the complainant and PW.3 Lucas Bwayo Wanyaire. Thewatchman also identified him as the man with bow and arrows. Laterhe was seen running into his house by PW.5, Pc. Mwakele Mwandoneand when the police followed him into the house Ali Ouma ran awaythrough the back door. It was his wife who was arrested and whenOuma went to the Police Station to check on her he was arrested.This he admits himself.

As for the 1st Appellant Stephen Bondola, the complainant didnot see him at the scene. There were about 10 robbers and some were outside. However, PW.2 says he saw him twice that night. Thefirst time at 7. 00 p.m. when he had come to the place and requestedto see the complainant and second time when the robbery was takingplace. He was on both occassions wearing a cap which was laterrecovered at the scene. He cut the witness with a panga after the3rd Appellant pointed an arrow at him. He was also known to PW.2before. There was bright moonlight and the robbery took quitesometime at least 30 minutes during which PW.2 was able to see who he was.

Regarding Appellant No.4, Francis Waweru, the complainant saidhe saw him removing his goods from the house. Complainant said hedid not know this Appellant. The evidence of PW.2 on thisAppellant seems confused. He was said to be armed with a knifeExh.3. The knife was said to have been recovered at thisAppellant's house. However, the evidence of Police Officer PW.4,who searched this Appellant's house said he recovered the knifefrom the house of Fanuel Juma the 2nd Appellant. Even the complainant said so. There is no evidence that the witness, PW.2, was present when the knife was recovered. This evidence is unreliable.

With regard to Appellant No.2, Fanuel Juma, the complainantsaid he saw him removing household goods from his house. The knifeExh.3 belonging to the complainant was recovered in the house ofthis Appellant. This is confirmed by PW.4 who searched the house.It is also beyond dispute that both complainant and this Appellant knew each other well. The evidence of PW.2 onlystates that "the robbers were many so may be you were one of them."No other evidence touches on this Appellant. The conclusion to bedrawn from the above is that there was evidence against Ali Ouma,and his defence is not truthful. He participated in the robberyand he was seen later running away from Police. It is only whenhis wife was arrested then he went to check on her at PoliceStation. His appeal is therefore dismissed.

Regarding Appellant No.4, Francis Waweru, the evidence ofidentification by PW.2 is not reliable. The complainant said hedid not know him and it is clear that evidence of identification isnot satisfactory. His appeal therefore succeeds and he is herebyset free forthwith unless held for other lawful reasons.

Regarding Appellant No.1, Stephen Bendola, the evidence ofPW.2 is reliable and consistent. The complainant said he did notsee him at the scene but it is true that there were many robbersand that was why the complainant may not have seen this Appellant.His defence was a simple denial and unreliable in the face ofspecific evidence against him.

Finally, the evidence against Fanuel Juma, the 2nd Appellantis given by the complainant and is supported by the recovery of thecomplainant's knife in his house. No other evidence touches onhim. In his evidence this Appellant did not mention anything aboutthe robbery. He did not even refute the evidence that the knifewas found in his house. He simply made a denial and alleged ill will between him and the complainant. The trial Magistrate rightly found that this defence was meant to shield the truth from thecourt.

His appeal has no merit and the same is hereby dismissed.

In the circumstances the convictions and sentence against 1stAppellant, 2nd Appellant and 3rd Appellant are hereby upheld. Theconviction and sentence against 4th Appellant is quashed andsentence set aside on both counts Dated at Mombasa this 24th day of May, 2000.

P.N. WAKI

J UDGE

KHAMINWA

COMMISSIONER OF ASSIZE