[2019] KEHC 6290 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL APPEAL NO. 20 of 2019

CONSOLIDATED WITH

CRIMINAL APPEAL NOS. 21 AND 22 OF 2019

TITUS KATHUKUMI PETER...................1ST APPELLANT

N M K...........................................................2ND APPELLANT

BONIFACE KIGUNDI PETER.................3RD APPELLANT

VERSUS

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

(An Appeal from the Judgment, conviction and sentence of Hon. G.N. Wakahiu CM, made on 29th January, 2019

in Maua Chief Magistrate’s Court Criminal

Case No. 1986 of 2013).

J U D G M E N T

1. The appellants were on 1st July, 2011 arraigned before the Chief Magistrate’s Court, Maua with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. It was alleged that on 13th September, 2010 at Gitura Village Maua Loation in Igembe South District within Meru County, they jointly robbed John Mwiti of 1 Kilogramme of sugar valued at Kshs. 90/=, 2 loaves of bread valued at Kshs 70/= and ½ Kilogramme of blue band margarine valued at Kshs. 110/= all valued at Kshs. 270/= and during the time of the robbery used personal violence.

2. The appellants denied the charges but after trial, they were found guilty and convicted of the charge. They were sentenced to life imprisonment. Aggrieved by the said decision, the appellants have appealed to this court against the conviction and sentence. There is on record a Supplementary Petition of Appeal filed by Mutuma & Koskei, Advocateson 27th February 2019 in respect of which the appeals were heard.

3. In the supplementary petition of appeal, the appellants set out various grounds of appeal which, Mr. Mutuma Learned Counsel for the appellants summarized into three and argued them as follows:-

a) that the trial court erred in convicting the appellants on contradictory evidence and in particular that the charge did not support the particulars of the offence from the witness statements and the Occurrence Book;

b) that the trial court erred in failing to consider that the prevailing circumstances did not support the P3 medical report;

c) that the trial court erred in failing to consider that the previous magistrate had interfered with the prosecutor’s discretion on what charges to prefer, the case being an assault and not one for robbery with violence.

4. This being a first appeal, it behoves the court to re-appraise, review and re-evaluate the facts afresh with a view of drawing its own independent conclusions and findings. Okeno .V. Republic [1972] EA 32. However, in doing so, the court must warn itself that it did not have the advantage of seeing the witnesses testify in order to gauge their demeanour.

5. PW1 John Mwiti (“the complainant”) testified that on the material day at about 7. 30pm, he was on his way home when he was accosted by the appellants. The 2nd appellant grabbed him and demanded money from him. The 1st appellant was armed with a slasher and the 3rd appellant was armed with a stone with which he hit him on the right cheek bone. The 2nd appellant slapped him on the face. That at the time he had a paper bag containing 2 loaves of bread, 1kg of sugar and blue band. The appellants ransacked his pockets for money but found nothing.

6. He shouted for help whereby PW4 Samuel Murithicame but was hit by the robbers so he stopped interfering. The appellants run away with his paper bag that contained 2 loaves of bread, 1kg of sugar and ½ kg blue band margarine He was taken to hospital by his wife, Catherine Kanyaru (PW2) and Christopher Mutuma (PW3).He reported the matter to the police station. He confirmed knowing the appellants as they were his mother’s relatives.

7. In cross-examination, he admitted that he did not mention in his initial statement to the police the robbery of the sugar or the 2 loaves of bread but that he had stated that the appellants fled without taking any money from him. He also admitted that his initial report indicated a complaint of assault as opposed to theft.

8. PW2 Catherine Kanyaru, PW1’swife, told the court that she was called by Christopher Mutuma (PW3)who informed her that (PW1)had been assaulted and injured. She rushed to the scene and found PW1lying on the ground with injuries to the eye, lips and shoulder. PW1informed her that it was the appellants who had assaulted him and robbed him of 2 loaves of bread, blue band and sugar. With the assistance of PW3 and PW4, they took him to hospital.

9. PW3 Christopher Mutuma told the court that he was outside Mwiti’s hotel chewing miraa with Samuel Murithi PW4 and others when PW1 passed down the road to Athiru. That the 3rd appellant followed PW1down the road and after two minutes, he heard screams. He and Samuel Murithi PW4 rushed to the source of the screams which was only 20 steps away. He saw the 3rd appellant assaulting PW1. He did not see the other appellants.

10. PW4 Samuel Murithi testified that he was with the PW3 and the 3rd appellant at the material time chewing miraa. That the 3rd appellant left them and followed the complainant. After a few minutes, he heard screams. He rushed to the scene and saw the appellants. They hurled stones at him as he tried to assist PW1. That they later took the complainant to Methodist hospital. He admitted in cross-examination that he did not see the 1st and 2nd appellant do anything to the complainant. By the time he got to the scene, PW1 was already injured.

11. PW5 Gatobu Ndereva was the clinical officer at Nyambene District Hospital. He testified that on 13th September, 2010, he treated the complainant who complained that he had been assaulted by persons known to him. That he had injury in the right eye, bruises on the face and mouth. His colleague Mr. Wilson Kimathi filled the P3 form 15 hours after the assault. He produced the medical notes and the P3 form as Exhibits 1 and 2, respectively.

12. PW6, Sylvester Juma was a police officer attached to Maua Police station. He took over the file from the original investigations officer. He bonded the witnesses and was conversant with the case. He confirmed that a P3 form was issued and completed by a medical officer. In cross-examination, he stated that he was handed an assault case. That no robbery was committed on the material day. That the OB revealed that the accused was charged with assault. The investigations did not reveal that there was any stealing on the material day.

13. DW1 the 2nd appellant told the court that on the material day, he was a student at [particulars withheld] High School. That at 6:30 p.m. he went home and did general cleaning and homework upto 10:00 p.m. He denied that he was at the scene and stated that at the time of his arrest, he was only 17 yrs old. His testimony was supported by his sister DW4 D K.She told the court that she was with the 2nd appellant from 6:30 p.m. until 10:00 p.m. She was aged 8yrs at the time.

14. DW2 the 3rd appellant testified that he was at Atubithi. That he was a mason/carpenter. That on the material day, he was at Sontuku’s place building a house for Sontuku’s mothers DW5 Beatrice Kanario, his mother, confirmed that she was at home with Moses and the 3rd appellant on the material night. That the appellant and her other son did their homework, took supper and slept at around 9:00 p.m.

15. DW3 the 1st Appellant testified that on the material day, he was cutting grass for the cows and doing domestic work at home. He also stayed at home with his brother Moses until 9:00 p.m. That he was arrested on 9th August, 2010.

16. As earlier stated, the appellants condensed and submitted on three grounds of appeal. I will also tackle the appeal along those lines.

17. On the first ground, the appellants contended that the trial court erred in convicting the appellants on contradictory evidence and that the charge sheet was defective. That the charge did not support the particulars of the offence. It was submitted that the original report to the police and charge was of assault and not robbery. That the evidence of PW6was that no report of robbery was made to the police.

18. According to Mr. Mutuma,since there was no report of robbery in the first report to the police, the charge sheet was defective in so far as it charged the appellants with robbery with violence. The case of Jason Akumu Yongo v. Republic Cr. A. No. 1 of 1983 was cited in support of those submissions.

19. In response, the respondent submitted that section 214 of the Criminal Procedure Code allows a trial court to alter and/or amend the charge sheet. That this is what the trial court did after taking the evidence of PW1.

20. The record shows that, initially the appellants were separately charged in Maua SPMC Cr. Case No. 4173 consolidated with No. 3651 of 2010 and Cr. Case No. 1073 of 2011. On 8th March, 2011, PW1 testified in Maua SPMC Cr. Case No.4173 of 2011 where after the prosecution amended the charge to that of robbery with violence.

21. In the said assault case, the Resident Magistrate then trying the case had observed that the evidence of PW1had disclosed a different and graver offence of robbery with violence whereby the court lacked jurisdiction to try it. In this regard, pursuant to section 214 of the Criminal Procedure Code the court ordered for the offence to be substituted.

22. PW1testified that he made the report to the police in the company of PW3 and PW4. He did this after being given first aid at the Maua Methodist Hospital. Neither he nor PW3 or PW4told the police that he had been robbed of bread, sugar and blue band margarine. In dealing with this issue, the trial court held that the complainant’s testimony on robbery was not challenged and that the only challenge was the complainant’s statement to the police.

23. With greatest respect, that was a misdirection. The complainant had been challenged why he did not report the robbery. In deed, the reference to his statement to the police was to test the credibility of his testimony.

24. It is expected that at the time a complainant makes a report to the police, the incident is so fresh in his mind that it will be unlikely that a complainant can forget the details of the incident he is reporting. In any event, it is expected that, in the event the nitty-gritty of the details are left out in the original report, such as what was robbed of a complainant, such details would appear in the subsequent statement to the police. To my mind, it cannot be by coincidence that an important detail such as the loss of one’s possession would be forgotten both in the original report to the police as well as the statement. The original report as well as the statement to the police are too important to be trivialized. (See Tekerali s/o Korongozi & 4 Others v. R [1952] EACA 259and Dancan Mayodi Asenji v. Republic [2016] eKLR).

25. The trial court was of the opinion that since the complainant told his wife shortly after the attack that the appellants had robbed him of his bread, sugar and blue band margarine, it must have been true. However, the trial court did not consider that neither the complainant nor his wife (PW2)nor PW3 and PW4 indicated in their respective statements to the police that a robbery had been committed or that the alleged items had been stolen from the complainant. It cannot be a coincidence that all the 4 witnesses forgot such an important aspect of the incident that they failed to disclose it to the police and only remember it at the trial.

26. Further to the foregoing, neither of the said witnesses explained to court why they had either forgotten or failed to tell the police about it. It is because none of them had mentioned it in their statements that the police did not initially charge the appellants with the offence of robbery but assault.

27. While the trial court may have been right in recommending the amendment of the charge, it was incumbent upon it at the trial to evaluate the evidence as a whole and make a finding on the issue. To my mind, the failure to report the robbery in the first report or state in their statements to the police was too a coincidence to be true. The trial court had clearly misdirected itself.

28. The foregoing being the case, was the charge sheet defective? I do not think so. What happened is that the prosecution, at the instance of the court, sought to prove a case of robbery with violence but did not establish the fact of stealing at the trial. The charge sheet cannot be held to be defective. It is the case that was not proved.

29. To my mind, the prosecution proved the charge of assault which it had originally sought to charge the appellants with. Section 179 of the Penal Codeprovides:-

“(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of a minor offence although he was not charged with it”.

30. In the case of Rashid Mwinyi Nguisa & Another vs. Republic [1997] eKLR,the Court of Appeal reiterated its position in Raphael Oyendi Omusinde v. Republic Cr.A 23 of 1991 (UR)and stated:-

“Before we go any further, the relevant part of the Omusinde case must be set down. It is as follows:-

‘In altering the finding in an appeal against conviction and substituting therefor a conviction for an offence other than that charged, the High Court in its appellate jurisdiction can only act within the provisions of sections 179 to 190, both inclusive of the Criminal Procedure Code; … Under the latter section, the substitution can only be for a minor and cognate offence to that charged.’”

31. Accordingly, that ground is successful to the extent stated above. The trial court should have convicted the appellants with the lesser offence of assault causing actual bodily harm in view of the contents of the P3 form.

32. The next ground was that the trial court erred in failing to consider that the prevailing circumstances did not support the P3 medical report. It was submitted that the testimony of PW5shows that he saw the complainant before the offence occurred. That the P3 form was filed on the same date revealing that the age of the injuries was 15 hrs hence the offence must have occurred on 12th September, 2010.

33. The court has seen the P3 report. The same shows that the complainant was sent for examination on 17th September, 2010. That must have been an error on the part of the officer filling the form as the overwhelming evidence shows that the complainant was sent on 13th September, 2010. The P3 form shows that the injuries were 15hrs.

34. I do not agree with Counsel for the appellants that the entry showing that the age of the injuries was 15hrs suggested that that the injuries were inflicted on 12th September, 2013. Firstly, PW5was not questioned about the said discrepancies on the P3 form. I believe if he was, he would have been able to clarify the discrepancies. Secondly, from, the evidence of the complainant himself, he was first taken to Maua Methodist Hospital immediately he was attacked, which is the 13th September, 2010. It is the following day 14th September, 2010 when his condition became worse whereby he was taken to Nyambene District Hospital.

35. That being the case, it is obvious that if the complainant visited that facility where PW5was working, the day after the incident, it must have been on 14th September, 2010 and not 13th September, 2010 as suggested by Learned Counsel.

36. In this regard, I hold that, in so far as the witness who made the document was not questioned or challenged on the alleged discrepancies, I hold that it will be unfair for the appellants to seek to raise discrepancies in documents produced at the trial which they did not challenge or seek an explanation. The trial court was never called upon to pronounce itself on it.

37. To my mind, when a party has had an opportunity to test the veracity of some evidence at the trial, the appellate court would very sparingly entertain the challenge as the court of first instance would have not had the opportunity to pronounce itself. The party should be taken to have conceded as to the veracity of such evidence.

38. In this regard, not only was Exhibit 2produced at the trial, but the maker thereof appeared and was cross-examined. However, he was not challenged as to the entries thereon. I reject the challenge being mounted against the P3 form. That ground is hereby rejected.

39. The last ground was that the trial court erred by convicting the appellants on contradictory evidence. Learned Counsel for the appellants did not state how the prosecution case was contradictory. He rather addressed the inadequacy on the directions on section 200 of the Criminal Procedure code.

40. On my part, I have carefully considered the record and reviewed the evidence of the witnesses. I have not seen or encountered any inconsistency or contradiction in the evidence proffered by the prosecution. Accordingly, I reject that ground.

41. On the alleged failure to apply section 200 of the CPC. Counsel submitted that the answer by the appellants to the compliance of section 200 of the CPC as required, had not been recorded. I have perused the record. I have noted that after the directions were given by the court on 18th April, 2018, the appellants responded in Kiswahili that; “Iendelee washahidi wasiitwe tena”. The trial court thereby proceeded to issue directions under that provision of the law. To my mind, that adequate compliance with that provision I reject that ground.

42. In view of the forgoing, I find the appeal to be partially successful and make the following orders: -

a) the conviction of the appellants for robbery with violence be and is hereby set aside and the sentence quashed. The same is substituted with a conviction for assault causing actual bodily harm under section 251 of the Penal Code, Cap 63 Laws of Kenya.

b) I sentence the appellants to serve 1 year imprisonment from the date of the sentence before the trial court.

It is so decreed.

DATEDand DELIVEREDat Meru this 27th day of June, 2019.

A. MABEYA

JUDGE