[2008] KECA 197 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: OMOLO, O’KUBASU &D. K. S. AGANYANYA, JJ.A)

CRIMINAL APPEAL 154 OF 2003

TOBIAS OUMA OTIENO ………………………… APPELLANT

AND

REPUBLIC ……………………………………… RESPONDENT

(Appeal from the judgment of the High Court of Kenya at Eldoret (Etyang & Tunya, JJ) dated 12th November, 2002In H.C.CR.A. NO. 38 OF 2001)

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JUDGMENT OF THE COURT

Tobias Ouma Otieno, the appellant hereinafter, together with another person who is not before us in this appeal, were tried before the Senior Principal Magistrate at Eldoret on one count of robbery with violence and a second one of assault causing actual bodily harm, both the two counts being contrary to sections 296 (2) and 251 of the Penal Code, respectively. The charge of robbery with violence under section 296 (2) of the Penal Code stated in its particulars that on 13th September, 2000 at Langas Estate in Eldoret, the appellant, jointly with his co-accused and another not before the court, while armed with dangerous or offensive weapons, namely, a toy pistol, an iron bar and a sword, they robbed Jane Wamaitha Thuo of cash K.Shs.7,218/= and that at or immediately before or immediately after the time of the robbery, they wounded Jane Wamaitha Thuo. The second count stated in its particulars that on the same date, time and place, the appellant and his confederates unlawfully assaulted Ruth Wanjiku and thereby occasioned to her actual bodily harm.

At the end of the trial during in which a total of seven witnesses testified on behalf of the prosecution and the appellant, supported by his father also testified, the magistrate found the appellant guilty on the first charge of robbery with violence, convicted him on that charge and sentenced him to death. The magistrate, however, said absolutely nothing about the second charge of assault and we presume that she must have intended to acquit the appellant on the second count, particularly in view of the fact that the prosecution never led evidence to show that the assault on Ruth Wanjiku was not part of the violence aimed at robbing Jane Wamaitha Thuo. We must assume in favour of the appellant that the magistrate must have intended to acquit him on the second count of assault and we now formally record an order of acquittal on that count.

On the charge of robbery with violence, Jane Wamaitha Thuo (P.W.1), hereinafter Jane, lived and operated a butchery in Langas Estate, Eldoret. Ruth Wanjiku (P.W.2), hereinafter Ruth, was Jane’s house-help. In the morning of 13th September, 2000 at around 7. 00 a.m. Ruth opened the door to the house for two men who claimed they were police officers. The two men immediately set upon Ruth and beat her up. She screamed and Jane heard her and left her room to go to the assistance of Ruth. At the door to her bed-room Jane was confronted by a man who hit her on the eye with some object and forced her back into the bed-room. In the bed-room, the man hit her twice on the back and forced her under the bed. The man demanded money from her and she told him where she had kept some Shs.7,000/=, the proceeds from her butchery business. She had not counted the money but she knew it was about Shs.7,000/=. The assailant took the money and left the room.

In the meantime, Ruth had managed to escape from the house and ran to summon help from John Mwaura Maina (P.W.3). John was their neighbour and heard the commotion in the house of Jane. He ran there and according to him, at the gate of Jane but still within her compound, John met the appellant who was armed with a sword. On seeing John, the appellant stopped and hid the sword under his clothes. John confronted the appellant and arrested him within the compound or at the gate of Jane’s compound. Two other people Francis Kamako Gakuna (PW4) and Isaack Njenga Thuo (PW6) soon joined John and all of them swore that they found John holding the appellant and that the appellant was armed with a sword. When Jane came out, she identified the appellant as the person who had attacked her in her bed-room. It is to be remembered the attack on Jane occurred at 7 a.m. in the morning and the issue of lighting cannot arise. Inside the room where Ruth had been attacked, a toy pistol and a hammer were found. When searched, the appellant was found with K.Shs.7,218/=.

The appellant answered these assertions by making an unsworn statement in which he said that his father had sent him to buy some provisions and for that purpose, the father had given him Shs.2,000/=. When he was passing by the gate of Jane, he was confronted by people who arrested him, beat him up and then delivered him to the police. He knew nothing about the robbery in Jane’s house. His father Charles Otieno Odede (D.W.1) supported the appellant and said he (D.W.1) had given to the appellant Shs.2,000/= to go and buy provisions for him to take to his rural home. He subsequently found his son arrested and being beaten.

Having listened to all those people the learned trial magistrate had no doubt that the truth was to be found with the prosecution witnesses and not with the appellant and his father. The magistrate concluded her judgment as follows:

“On the other hand the prosecution had called witnesses who have confirmed that accused was arrested on P.W.1’s compound soon after the robbery. The time of the incident was 7. 00 a.m. or thereabout. It was day time and the witnesses have said what they say [saw?]. P.W.1 and P.W.2 were injured by the attackers. This is confirmed by the P3s (EXH. 2 and 6). Produced before this court were EXB 3, 4 and 5 which were found at the scene of the robbery. They were dangerous weapons which were used by the attackers. Accused has been already identified as one of the attackers. He was armed. I am satisfied beyond doubt that the accused was one of the robbers involved in this robbery. For my part I find the prosecution case proved beyond a reasonable doubt and hence convicted him as charged”.

The appellant was dissatisfied with the trial magistrate’s conclusions. He appealed to the High Court and having listened to the appellant’s submissions, the High Court (Etyang and Omondi Tunya, JJ) concluded their judgment as follows:

“In the present appeal the appellant was certainly in possession of the stolen money a very short time after robbing P.W.1. He was arrested within P.W.1’s compound. In the circumstances of this case P.W.1’s identification of the appellant has sufficiently been corroborated and the explanation of the appellant was for rejection. Evidence against him was overwhelming”.

The appellant now comes before us by way of a second appeal. His complaints as stated in his home-made “PETITION OF APPEAL” are:

“1. That I did not plead guilty to the said charge. 2. That the prosecution witnesses did not give corroborative evidence. 3. That the prosecution case was not proved beyond any reasonable doubt. 4. That my Lordship my statement under inquiry was obtained through torture. 5. That the trial judges erred in law by relying on the judgment of the law (sic) court magistrate without giving the cogent reasons. 6. That the learned trial judge erred in law and facts by objecting (sic) my defence and that of my defence witnesses evidence and shifting the burden on my side”.

This is a second appeal and only matters of law can arise for our consideration. It is true the appellant did not plead guilty as he states in ground one of his grounds of appeal. With regard to ground two, the witnesses swore the appellant was caught right in the compound of Jane where the robbery had occurred. John was the witness who caught him and two other witnesses who joined John said they found John and the appellant at the gate of Jane. Jane said she had been robbed of some Shs.7,000/=. When arrested, the appellant had with him Shs.7,218/=. The appellant and his father had contended before the magistrate that the father had given to the appellant only Shs.2,000/=. They did not say where the rest of the money found with the appellant had come from. Jane swore the money had been taken from her. Clearly, the evidence of the prosecution witnesses was “corroborative” contrary to the appellant’s contention in ground two that the evidence was not corroborative. The magistrate and the first appellate court, as we have seen, had no doubt whatsoever that the case was proved beyond any reasonable doubt and that the evidence against him was overwhelming.

The appellant thinks that was not correct. He is entitled to his view on that aspect of the matter but if the evidence of the prosecution witnesses was to be believed, as it was believed, then the question of the charge not being proved beyond any reasonable doubt cannot arise.

We cannot find any statement under inquiry allegedly made by the appellant. None was produced and none was relied upon either by the trial court or by the first appellate court. The first appellate court did not “rely” on the judgment of the trial magistrate. The learned Judges reconsidered the entire evidence and as we have seen, they were of the view that the evidence against the appellant was overwhelming. On the recorded evidence the learned Judges were entitled to take that view. They were equally entitled to reject the evidence of the appellant and his father; having believed the witnesses for the prosecution, the evidence of the appellant and his father was bound to be rejected.

We listened to Ms. Wanjala, learned counsel for the appellant, argue these points before us. In the end, she really raised no point of law worth our consideration and her basic contention boiled down to the question of which side of the story should have been believed. On our own assessment of the recorded word, we are satisfied the appellant was convicted on sound evidence which proved the charge against him beyond any reasonable doubt.

That being our view of the matter, we order that this appeal be and is hereby dismissed.

Dated and delivered at Eldoret this 11th day of April, 2008.

R. S. C. OMOLO …………………………….

JUDGE OF APPEAL

E. O. O’KUBASU

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JUDGE OF APPEAL

D. K. S. AGANYANYA

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR