[2017] KEHC 3127 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO. 187 OF 2012

STEPHEN MICHINJI NJOROGE………………………APPELLANT

VERSUS

REPUBLIC…………………………………………..…RESPONDENT

(Appeal from original conviction and sentence in Othaya Principal Magistrates’ Court Criminal Case No. 497 of 2011 (Hon. F.W. Macharia, Principal Magistrate)

JUDGMENT

On 8th October, 2011 at about 2. 00 AM Stellamaris Wambui Waweru (Wambui) (PW1), Consolata Gichuki (Consolata) (PW2) and Agnes Wangui Mengere (Agnes) were asleep in their three-bedroomed house at Othaya catholic parish in Othaya town when robbers struck. One of the robbers, armed with a kitchen knife, entered each of the bedrooms in which the three housemates were sleeping and robbed them of money and other valuables. The robbers then huddled them together and locked them in a toilet. The police came to their rescue a few minutes later after one of the complainants alerted one Peter Ndirangu who was in charge of the parish.

Upon conclusion of their investigations, the police suspected the appellant together with one Isaack Wachira Wangari to have been involved in the robbery and so they charged them with three counts of robbery with violence contrary to section 296(2) of the Penal Code (cap.63). The particulars in the first count were that on the 8th October, 2011 at Othaya township in Nyeri south District within Nyeri County, jointly with others not before court, being armed with offensive weapons namely knives, they robbed Agnes Wangui Mengere of one laptop( make Toshiba), one modem, two mobile phones (make Nokia E72 and Nokia C 1000) and cash Kshs 12,450/= all valued at Kshs 58,150/= and at, immediately before and immediately after the time of such robbery used personal violence to the said Agnes Wangui Mengere.

The particulars in the other two counts were similar to those in the first count in every material respect expect for the names of the victims who in this instance were respectively Consolata and Wambui, and the property stolen from each of them.

At the conclusion of the trial the learned trial magistrate acquitted the appellant’s co-accused on all the three counts; she also acquitted the appellant on the first count but convicted him on the second and third counts. The appellant was sentenced to death on the second and for that reason the sentence in respect of the third count was held in abeyance.

The appellant was not satisfied with the conviction and sentence and therefore he appealed to this Honourable Court. He raised only three grounds of appeal in his petition filed in court on 31st October, 2012 and these are that:

1. The learned trial magistrate erred both in law and in fact in failing to consider that the identification parade was flawed and therefore could not be a basis for his conviction;

2. The learned magistrate erred both in law and in fact in failing to evaluate the evidence on record and in particular, the arrest of the appellant and whether there was any link between him with the commission of the offence;

3. The learned magistrate erred both in law and in fact in disregarding the appellant’s alibi without giving any reason contrary to the provisions of section 169(1) of the Criminal Procedure Code, cap. 75.

Counsel for the appellant only submitted on the first and second grounds of appeal, in the written submissions which he filed on the appellant’s behalf. Even then, he largely dwelt on the issue of identification of the appellant and in his view the appellant was not positively identified.

The learned counsel for the state on the other hand opposed the appeal. According to him the conditions for identification of the appellant were favourable, the complainants gave his description to the police and he was subsequently identified in an identification parade.

In order to appreciate the arguments for and against the appeal, it is necessary for this court, being the first appellate court to navigate through the record and evaluate the evidence afresh and come to its own conclusions for it is only then that it can come to the decision whether or not the factual findings of the trial court should be upheld. However, as much as this court is entitled to come to its own conclusions, which may very well differ from those reached at by the trial court, I am minded that it is this latter court that had the advantage of seeing and hearing the witnesses and thus was in a better position to appreciate certain aspects of evidence such as the credibility, the demeanour or the general disposition of the witnesses. (See Okeno versus Republic 1972 EA 32 at page 36).

According to Consolata’s (PW2’s) testimony, she together with her two colleagues lived in the same house but occupied separate rooms. On 8th October, 2011, she was woken up by a stranger who had, somehow, found his way into her room. He was armed with a kitchen knife and he demanded for money; he even took her Kshs 2000/= that was on the table. He threatened to kill her if she did not give him more money. He then ordered her to lead him into her other colleagues’ rooms. They went to Wambui’s door; Consolata knocked and asked Wambui to open. She opened only to find that Consolata was accompanied by an armed robber. She screamed but the robber ordered her to keep quiet or he would kill her. They then all went to the other colleague’s room where he was also given money. He took all of them to the kitchen and ordered them to lie down. He left with Agnes to her room but later came back. Meanwhile, Consolata heard voices of other people. The robber then took them to the toilet and locked them there. He came back for Consolata and demanded for more money. She gave him Kshs. 70; he took her two jackets and her phone before he took her back to the toilet. Wambui then sent a text message to Peter Ndirangu who was in charge of the Othaya catholic parish alerting him that they had been attacked. Later the police arrived and rescued them.

Consolata described the robber as tall, dark but not very dark. She was able to see him when they entered Agnes’ room because she switched on lights at this particular time. She was able to identify the appellant on an identification parade as the person who attacked them.

On her part, Wambui (PW1) testified that at about 2. 00 AM on 8th October, 2011 she heard a knock on her bedroom door. When she enquired who it was that was knocking, Consolata (PW2) answered. As she opened the door a man armed with a knife entered her room, pushed her and demanded for money. She switched on the lights and gave him the money. He also searched in her bags and got Kshs 5,000/=. He then asked them to go call Agnes as he stood behind them. Consolata knocked at her door but she did not open. She later opened when the man attempted to break the door. He also demanded for money from Agnes. He took Agnes’ two phones. As they went to the Kitchen door, Wambui saw a man whom he described as brown and short armed with an iron bar. The two of them were communicating in sign language. They were then ordered to lie down. Wambui could hear movements of people getting in the house. They took Agnes to her room and came out with a laptop. As she was running short of air she made some sound which caused the man armed with the iron bar to laugh. They asked for more money from Consolata; she gave them Kshs 70 in coins. They then asked if she thought they were priests as to be given such kind of money. They took them to the toilet where they remained until such time that they thought the robbers had left. Wambui proceeded to her room and called the parish priest to inform him of the incident. The police arrived after about 10 minutes. Like Consolata, Agnes described the man who entered her room as dark and slender with protruding ears. She testified that they were not only in contact but that they even conversed. Her lights were on and she saw him well. She gave his description to the police. It is for this reason that she was able to pick him out in an identification parade.

The appellant was arrested by Inspector George Opere (PW3) and Senior Sergeant Ndirangu while on patrol within Othaya town on 31st October, 2011 at around 6. 00 PM. According to inspector Opere, an informer called and informed him that a most wanted criminal was at Matthews Bar & Restaurant near Kenya Power & Lighting Offices. He was given his description as a tall and slim person with protruding ears. He also had a mark on the forehead. When they went to the bar they found the appellant standing by the door and since the appellant fitted that description they had been given, the officers arrested him. They took the appellant to the police station where he was booked.

Corporal Stephen Mutua (PW4) conducted the identification parade in respect of the appellant’s co-accused and his evidence was restricted to that parade only. As noted, the appellant’s co-accused was acquitted and therefore the evidence of this witness is of little relevance to the appellant’s appeal. As a matter of record, the appellant did not cross-examine him. Similarly, the evidence of Senior Sergeant Wambua (PW6) was about the appellant’s co-accused and never mentioned anything to do with the charges against the appellant.

The more relevant evidence in respect of identification of the appellant is that Chief Inspector Jackson Kiema (PW5) who testified that on 1st November, 2011 at about 9. am Corporal Oyalo asked him to conduct an identification parade in respect of the appellant. According to this witness he proceeded to the police cells and called out the appellant’s name. When the appellant responded, he informed him the purpose for the identification parade. The appellant agreed to participate in the parade and told him he did not need anybody else, apart from the parade members, to be present. The officer lined nine members of the parade; according to him, they were all of similar height.

The first witness, Wambui (PW1) picked the appellant out by touching him. Consolata (PW2) too identified him. The appellant however, recorded his reservations with the parade apparently because one of the witnesses had seen him before the parade.

Finally, the investigations officer Corporal Patrick Oyalo (PW7) testified that on 8th of October 2011 at around 8:30 AM he was summoned by the District Criminal Investigations Officer (DCIO) Chief Inspector Mutua, who informed him of the robbery at a Catholic church. He proceeded to the scene and found the three complainants who told him that they had been attacked by armed robbers at 2. 00 a.m. They give him the details of all that had been stolen from them including money and their cell phones.

The complainants informed him that they could identify at least two of the robbers if they saw them and in this regard, they gave him their physical description. In the course of his investigations, corporal Oyalo established that two of the robbers, one of whom turned out to be the appellant, were overheard talking about the robbery. They were identified as “Loketo” and “Wachira”. The investigations officer passed this information to his fellow officers. On 31st October, 2011, he was informed that the appellant had been arrested and was later positively identified in an identification parade.

In his defence the appellant gave sworn testimony and denied committing the offence. He said on 1st November, 2011 he was taken to the police station where he found two nuns seated with Sergeant Wambua. He was then taken to the cells and after about 10 minutes he was called to join eight other people in an identification parade. He informed the officer in charge of station that he was not satisfied with the identification parade because the two witnesses who identified him had seen him at the station before and also because he was the tallest person amongst the members of the parade. He also lamented that though the District Criminal Investigations Officer(DCIO)together two other officers arrested him, the DCIO did not testify as the arresting officer. He testified that he was framed and was arrested a few days after he had been released from prison.

The first question that the learned trial magistrate considered, rightly in my humble view, was whether the offence of robbery with violence as defined under section 296(1) read with section 296(2) of the Penal Code had been committed. She considered the complainant’s evidence and came to the conclusion at least two of the circumstances in which this offence is said to occur were manifest and therefore held that it had been proved beyond all reasonable doubt.

The evidence on record supports the learned magistrate’s finding. It is apparent from the complainants’ testimony that they were attacked by armed men. Though none of them suffered any physical injury in the process, at least Wambui PW1 testified that she was pushed by the robber when she opened the door to her room in response to Consolata’s (PW2’s) knocking. The complainants were also threatened with death if they raised alarm or failed to comply with orders of one of the attackers. The attackers robbed them of their money and other valuables before they left.

This evidence reveals that the complainants were robbed but also that, at the time they were robbed, there existed at least two of the components that comprise the offence of the robbery with violence; first, one of the robbers was in the company of other attackers and second, at least two of the robbers were armed. Any of these components would have been sufficient to demonstrate that the offence of robbery with violence had been committed.

I respectfully disagree with counsel for the appellant on his submission that the prosecution had to prove not only that actual violence had been used but also that there was medical evidence to boot. Section 296(2) of the Penal Code under which the appellant was charged does not place such a burden on the prosecutor. Neither does it require, as the learned counsel appeared to suggest, that all the three elements must be proved to exist before a conviction can be sustained. That section says: -

296 (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 robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

The section is couched in a such way that the components that constitute the offence of robbery with violence are disjunctive and not adjunctive meaning that proof of any is enough to mount a prosecution. In Criminal Appeal No. 575 of 2010, Stephen Khaega Atakha versus Republic (2015) eKLR the Court of Appeal sitting at Kisumu adopted this reasoning and cited its earlier decision in Mohamed Ali versus Republic (2013) eKLR where it was held 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.”

But even proof of the element of violence was necessary, it must be remembered that Wambui(PW2) was pushed against her will. This in itself is violence and merely because she did not sustain any injury does not necessarily mean that no violence was proved. It does not always follow that every form of violence must result in some injury or that it has always to be proved by medical evidence. Again, in Stephen Khaega Atakha versus Republic (2015) eKLR (ibid)which incidentally was cited by the appellant’s counsel, the Court of Appeal suggested that the evidence of injury (in this case bodily scars) was sufficient without production of the P3 form or the evidence of the doctor who may have examined the complainant.

Suffice it to say, I am satisfied, as the learned trial magistrate was, even without proof of violence, the offence of robbery with violence was proved beyond all reasonable doubt.

The next question that this court has to contend with is whether the trial court was right in holding the appellant culpable for this offence. The answer to it turns on identification of the appellant; in other words, whether the appellant was positively identified as the perpetrator of this crime.

The identification of an accused person or persons is, more often than not, a recurrent question in any trial for the offences of robbery or robbery with violence. Whenever this question arises, the trial court is enjoined to interrogate the circumstances under which the accused person, assuming it is only one accused, was identified. Ordinarily, where conditions for positive identification are established to have been favourable, this question poses little or no difficulty in reaching the conclusion that a particular individual was positively identified without any danger of mistaken identity. The converse is true where it is apparent from the evidence that either the conditions for such positive identification were lacking or there is doubt whether they existed at all. In this latter case, there could be a possibility of error and whenever such a possibility emerges, it would be unsafe to convict on such evidence particularly so if it is the only evidence.

The favourability of the conditions for a positive identification is largely a question of fact meaning that whether or not those conditions can be said to be favourable depends on the circumstances of each particular case.

Turning back to the appellant’s trial, it is not in dispute that the complainants were attacked at 2:00 AM, in the wee hours of the day when visibility would ordinarily be poor if not difficult. It does then follow that if the complainant’s only source of light was the natural one, a visual identification of who their attackers were would have been impossible. There was evidence, however, that electricity lights were switched on at a certain stage in the course of the robbery.

According to Consolata (PW1) she was somewhat held hostage and used as a decoy by the intruder to gain access into her colleagues’ rooms. When they entered Wambui’s (PW2’s) room, the latter switched on the lights and so they were able to see their attacker. In the glare of the electricity light, he ransacked five bags in Agnes’ room in the presence of the complainants. The attacker then took them to Agnes’ room before he herded them into a kitchen, where there was light too, and finally to a toilet. But he was not yet done, he spent more time with them when he took each of them back to their respective rooms for more property.

What emerges from the complainants’ evidence is that they not only saw their attacker with the help of the electricity light but they also spent a considerable amount of time with him. Inevitably, he left an impression of his looks in their minds to the extent that they were able to give his description to the police when they reported the robbery. This description was circulated to the rest of the police officers in the Othaya region where the robbery took place and it is partly on the basis of that description that the appellant was arrested.

Again, based on the same description the police organised, as they were bound to, an identification parade from which the complainants identified and picked out the appellant as the person who fitted the description they had given to the police and who they believed was the person who robbed them.

Counsel for the appellant dwelt relatively extensively on this aspect of evidence and faulted the identification parade as flawed. He submitted that the witnesses gave contradictory evidence of the description of the appellant and the members of the parades were not of the same height as the appellant. Counsel also lamented that the witnesses had seen the appellant before the parade contrary to Police Force Standing Order No. 6(iv). He relied on Ajode versus Republic (2004) 2KLR 81 and Omar versus Republic (1986) LLR 3198(CAK) for the position that where a witness sees an accused person before identifying him on the parade, his evidence is valueless. Counsel also faulted the parade because after the appellant had been identified by the first witness, the appellant remained in the same position amongst the parade members when he was identified by the second witness.

I am aware that where the evidence alleged to implicate an accused is entirely of identification, as it was in the trial against the appellant, that evidence must be absolutely watertight (see R versus Eria Sebwato) (1960) EA 174 at page 175). Narrowing down on the question of identification parades, the law on the conduct of such parades was outlined in R versus Mwango s/o Manaa (1936) 3EACA 29 which was cited with approval in Criminal Appeal No. 117 of 2005, David Mwita Wanja & 2 Others versus Republicwhere the Court of Appeal said:

The purpose for, and the manner in which, identification parades ought to be conducted have been the subject of many decisions of this court over the years and it is worrying that the officers who are charged with the task of criminal investigations not appear to get it right. As long ago as 1936, the predecessor of this Court emphasised that the value of identification as evidence would depreciate considerably unless an identification parade was held with the scrupulous fairness in accordance with instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA 29. There are a myriad other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia versus Republic (1986) KLR 422 where the court stated at page 424: -

It is not difficult to arrange well conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course, if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man of the parade, and reach back to his impression of the person who perpetrated the alleged crime.

As far as I understood the evidence of Chief Inspector of Police Jackson Kiema, he conducted the identification parade in conformity with the police force standing orders. The appellant was informed of his right to a lawyer or a friend otherwise there is no reason why he told this witness that he does not need anybody. Again, the officer who conducted the parade was not the one in charge of the case or the investigations. Although it was argued on behalf of the appellant that the witnesses saw the appellant before the parade was conducted, the witnesses denied that this happened. According to the witnesses, they were called from the office of the Officer in Charge of Station where they were waiting from. Although the appellant testified, in his defence, that he was brought to the station on 1st November, 2011 when he was arrested and it is then that the witnesses saw him, the evidence on record shows that he was arrested on 31st October, 2011 a day earlier. It follows that since the appellant was in the police cell on 1st November, 2011, there is no way the witnesses could possibly have seen him at the office of the Officer in charge of the station.

There is also no evidence that the witnesses communicated with each other as they took their turns in inspecting the parade. As for the positioning of the appellant in the appellant, it was within his discretion to take a particular position amongst the members of the parade and he did exactly that in the parade of eight other persons who were generally of similar appearance like him. Both witnesses touched the appellant as the person they had identified. At the end of it all the appellant was asked if he was satisfied with the parade. He of course indicated that he was not satisfied but the ground upon which he expressed his reservations was unfounded.

The appellant’s defence did not displace what I think was a concrete prosecution case against him. Though he was not bound to, he never offered any explanation of where he was on the material day that the complainants were attacked. I am minded that he may as well have kept quiet in his defence and the burden is on the prosecution to prove its case beyond reasonable doubt; however, if the accused persons defence does not create any reasonable doubt in the prosecution case, then the trial court is not bound to accept it and in this regard the learned trial magistrate was right in dismissing the appellant’s defence.

In the final analysis, I am persuaded that the circumstances under which the appellant was identified were not only favourable for a positive identification and free from the possibility of any error but also that the identification parade in which the appellant was singled out as the person who robbed the complainants was generally conducted with scrupulous fairness. The appellant was properly convicted as charged.

As for the sentence meted out against him, all I can say is that it a mandatory sentence and this court has no basis to disturb it. Inevitably, I do not find any merit in his appeal and it is hereby dismissed.

Signed, dated and delivered in open court this 6th October, 2017

Ngaah Jairus

JUDGE