[2022] KEHC 684 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCRA NO. 58 OF 2018

VICTOR MAMBWA OPATI …………………………………. APPELLANT

VERSUS

REPUBLIC ………………………….……………………….. RESPONDENT

[Being an appeal against the conviction and sentence of the Senior Principal Magistrate’s Court at Maseno

(Hon. R. S. Kipngeno SRM) dated the 22nd May 2018 in Maseno SPMCCRC No. 1000 of 2013]

JUDGMENT

VICTOR MAMBWA OPATI was convicted for the offence of ROBBERY WITH VIOLENCE, contrary to Section 296 (2)of the Penal Code, and he was then sentenced to Life Imprisonment.

1. In his appeal to the High Court he has raised fiveissues which can be summarized as follows;

(1) The prosecution failed to make available crucial and independent witnesses.

(2) The Death Penalty is unconstitutional,inhumane and degrading.

(3) The doctrine of recent possession waserroneously invoked.

(4) The evidence on record did not corroborate the statement on the charge sheet.

2. Later, he raised 3 issues in his Supplementary Grounds of Appeal. Those 3 issues are that;

(a) Evidence on Identification was unsound.

(b) The evidence of recovery was not proved beyond any reasonable doubt.

(c) The prosecution case was poorlyinvestigated, hence unsafe to be thebasis of a conviction.

3. When canvassing his appeal, the Appellant made submissions under five heads. I will be analyzing the submissions in the order which the Appellant has presented them.

4. During the process of analyzing the submissions, I will also be re-evaluating the evidence on record.

1. IDENTIFICATION

5. The Appellant pointed out that the incident which gave rise to the case, took place at night. However, the source of the lighting which facilitated positive identification was not described, said the Appellant.

6. Even when the Complainant took part in an Identification Parade, she did not identify the Appellant.

7. A perusal of the evidence of the Complainant, PW1, shows that when she heard a loud bang at her door, she woke up, and she put on the electric light, which is inside the house.

8. She also testified when the group of people confronted her inside the house, the light was not put out.

9. PW1also said that the assailants were inside the house for an hour. Therefore, when she recorded her statement at the Police Station, she told them that she could identify the persons who had robbed her.

10. However, when an Identification Parade was organized, the Complainant did not identify the Appellant.

11. But when PW1was giving evidence at the trial, she said that she could identify the 2 accused persons.

12. She said that the 1st Accused, DESMOND ODANGA OMBETE, was the Commander, whilst the Appellant was the person who packed her speaker. PW1said;

“They were in my house for more thanan hour. The 2nd one was so cheeky.

He was the youngest. He could converse with me; he asked me, ‘kumbe una speakerna pass.’

I don’t know why I couldn’t identifythem at the parade. I asked police whytheir commander, 1st accused was not atthe parade, they told me he refused toattend the parade.”

13. PW2, BENSON ANDANJI OMAKURE, is the husband to PW1. He was not at home when the robbery occurred. However, immediately after learning about it, he rushed back home.

14. PW1told him that she could identify some of the robbers, because the lights were on. PW2said that the house had electric lighting.

15. On the basis of the evidence tendered by the Complainant, I am satisfied that the source of lighting was electric lighting, which was on inside the house wherein the Complainant was robbed.

16. However, it is also true that notwithstanding the sufficiency of the lighting, the Complainant was later unable to pick out the Appellant from the Identification Parade.

17. Therefore, what remained in this case was dock identification.

18. On the one hand, the Appellant was of the view that the dock identification was of no value, whilst on the other hand the Respondent submitted that dock identification was not necessarily valueless.

19. The Respondent relied upon the following words of the Court of Appeal in the case of JOHN NDUATI NGURE V REPUBLIC (2016)eKLR;

“As we understand the law onidentification of suspects, identificationparades are useful but they are notalways mandatory; dock identificationmay be sufficient if a trial court may,depending on the circumstances of thecase, find the identification to besufficient.”

20. Based upon that decision, the Respondent submitted that the dock identification herein was safe and proper as it was corroborated by voice recognition.

21. Having given careful consideration to the evidence on record, I failed to find where the Complainant testified that she had identified the Appellant either by facial appearance or by his physical appearance; and that such identification was corroborated by voice recognition.

22. In my considered view, if the Complainant had been sure that the voice of the Appellant would give him away, she ought to have requested the Police Officer conducting the Identification Parade, to have the members of the said parade instructed to talk. If the witness had then picked out the Appellant, after the members of the parade had talked, that would have constituted positive voice identification.

23. I find that there was no positive identification of the Appellant.

2. RECOVERY OF EXHIBIT

24. The Appellant submitted that the prosecution failed to lead any evidence to connect him with the house at Lela, where some stolen items were recovered from.

25. His view was that the prosecution should have produced evidence to prove who the proprietor of the said house was.

26. In any event, he believes that there ought to have been evidence that would have shown how and why he would have led the police to the house at Lela. In the absence of evidence about the investigations which would have shed light on the recovery of exhibits, the Appellant submitted that the investigations were poorly conducted.

27. As the Appellant pointed out, if there were circumstances that created any reasonable doubt in the mind of the court, concerning the guilt of the accused, the benefit of such doubt must be granted to the accused, through an acquittal.

28. The Complainant told the court that she was not present when the exhibits were recovered at the house in Lela.

29. The Investigating Officer, PW6told the court that it is the Appellant who led the police to the house at Lela. This is what the witness said;

“As I continued with investigations, on5/9/2013, 2nd accused who was in anothercase before this court, led us to Lela tosearch for other things related to that other case. As we were approaching the house he was leading us to, the persons in that house, on seeing us, took off.

On getting into that house, we tookassorted clothes and items, such asspeakers concerned with that other case,and invited the complainant to come andidentify them.

We also invited complainant herein and her husband to come to see whether anyof their property was among what we hadrecovered. They identified this speaker astheirs, and this blue pair of socks as herhusband’s; this bed sheet and also 3 piecesof curtains. After items had been identified, we charged the 2nd accused also and later consolidated the 2 cases.”

30. I find that the evidence tendered by the Investigating Officer sets out clearly the sequence leading to the recovery of exhibits at the house in Lela.

31. By virtue of the fact that it is the Appellant who led the police officers to the house from which some of the exhibits were recovered, that created a direct nexus between the Appellant and the said house.

32. The Appellant submitted that the prosecution ought to have led evidence to prove ownership of the house at Lela.

33. I understood him to be saying that if there was no proof that he was the proprietor of the said house, he could not be said to have been in possession of items recovered from that house.

34. Section 4 (a)of the Penal Codegives the following definition of “possession”;

“be in possession of” or “have inpossession includes not only havingin one’s own personal possession, butalso knowingly having anything in theactual possession or custody of anyother person, or having anything inany place (whether belonging to oroccupied by oneself or not) for the useor benefit of oneself or of any otherperson.”

35. It therefore follows that the prosecution did not need to prove that the Appellant was either the proprietor or the occupier of the house at Lela.

36. I therefore hold that the Appellant was in possession of the exhibits recovered from the house in Lela.

37. On the authority of LEONARD ODHIAMBO OUMA & ANOTHER Vs REPUBLIC [2011] eKLR, I find that;

“Failure to compile an inventory….,is in our view a procedural step which in the circumstances, did not prejudice the appellants in any way,and for this reason, the omission did not vitiate the trial.”

3. DEFENCE

38. In his defence, the Appellant said that he did not participate in the offence at all.

39. He told the court about the date of his arrest, on 5th September 2013. He said nothing about what transpired on 29th July 2013, which is the date when the Complainant was robbed.

40. I find that the said defence was a bare denial, which did not, and could not have dislodged any part of the consistent, corroborative and sufficient evidence which the prosecution had tendered.

41. In effect, the conviction was based upon a solid foundation, and the same is therefore upheld.

4. SENTENCE

42. The Appellant submitted that the trial court erred by sentencing him to Death, which was the mandatory punishment prescribed by Section 296 (2)of the Penal Code.

43. The correct position is that although the statute prescribed the death penalty for capital robbery, the trial court herein sentenced the Appellant to Life Imprisonment.

44. In arriving at that sentence, the learned trial magistrate took into account the Appellant’s mitigation as well as the recent jurisprudence from both the Supreme Court and the Court of Appeal.

45. I find that the sentence was lawful and in line with the decision by the Supreme Court in FRANCIS KARIOKO MURUATETU & ANOTHER Vs REPUBLIC, PETITION NO. 16 OF 2015.

46. Accordingly, the sentence is upheld.

47. The upshot of that is that the appeal fails in its entirety.

DATED, SIGNED and DELIVERED at KISUMU

This18thday of March2021

FRED A. OCHIENG

JUDGE