[2022] KEHC 15083 (KLR)

Wairegi v Republic (Criminal Appeal 17 of 2020) [2022] KEHC 15083 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15083 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 17 of 2020

SN Mutuku, J

October 11, 2022

Between

Joyce Wairimu Wairegi

Appellant

and

Republic

Respondent

Judgment

1. Joyce Wairimu Wairegi, the appellant, was charged before the lower court with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. The particulars of that offence show that on the November 12, 2015 at Machakos town in Machakos Sub County within Machakos County, jointly with others not before the court robbed Jeremiah Nduati Kimani of Motor Vehicle make Mitsubishi FH registration number KBV XXXA valued at Kshs 5. 2 million, mobile phone make Itel 1353 valued at Kshs 4000 and money, cash Kshs 23,000 all valued at Kshs 5,227,000 and immediately before and immediately after the time of such robbery used actual violence on the said Jeremiah Nduati Kimani.

2. The appellant pleaded not guilty to the charge. After a fully trial, she was found guilty and sentenced to 25 years imprisonment. She is aggrieved by the conviction and sentence and has come to this court on appeal. In her Petition of Appeal filed in court on November 25, 2020, she has raised three (3) grounds of appeal:i.That the learned magistrate erred in law and fact by convicting and sentencing the appellant to 25 years imprisonment without proper finding that the plea was unequivocal.ii.That the learned magistrate erred in law and fact by failing to note that the prosecution did not prove its case beyond reasonable doubt.iii.That the learned magistrate erred in law and fact in rejecting the appellant’s defence without giving any reasons as to why it could not stand against the fabrication of prosecutor’s case which lacked corroboration.

3. The appellant urges that the appeal be allowed, the conviction quashed and the sentence set aside.

Oral submissions 4. The appeal was argued orally on June 16, 2022 through virtual proceedings. The appellant argued her case by finding fault with the evidence of PW1. She submitted that PW1 testified that he took photographs on April 25, 2017, when the offence is said to have occurred in 2015. She submitted that PW2 testified that the identification parade was conducted when this is not true because PW1 only told the appellant to sign the documents without her knowledge as to why she was signing.

5. She submitted that PW3 did not bring the exhibits to court; that no gun was found on her; that no agreement for the hire of the motor vehicle was produced in court and that PW6 did not claim that the motor vehicle was stolen but that it was hired; that the substance given to the PW6 was not identified and that 25 years is a long time.

6. She further claims that she was not accorded adequate time to prepare her defence; that her defence was not considered and that her mitigation was not considered. She further submitted that she seeks a second chance; that she wanted to help her young siblings; that it was her first offence and that she will not repeat it. She stated that she has learned how to relate well with people. She also claimed that she was framed.

7. The appeal was opposed by the prosecution. Mr Mang’are, the prosecution counsel submitted that the appellant pleaded not guilty and the case proceeded to full trial; that she was given opportunity to cross-examine witnesses; that she was placed on her defence and she gave an unsworn defence and therefore she cannot claim that she was not given an opportunity to give evidence.

8. It was submitted that the prosecution evidence was credible and consistent; that the appellant was made to sign the inventory of the items recovered from her and that inventory was produced with all the exhibits and that the prosecution proved its case beyond reasonable doubt. The prosecution asked that the appeal be dismissed and the conviction and sentence be upheld.

The evidence 9. The record of the lower court shows that Jeremiah Nduati, a driver employed by Samuel Kinyanjui (PW8), driving motor vehicle registration number KBV XXXA Mitsubishi FH belonging to PW8 was at work at Thika. At around 4. 00pm on November 12, 2015, two people approached him and introduced themselves to him as husband and wife. He identified the appellant as the wife. She approached him and told him that she had a store with cowpeas in Machakos and he was to drive them to Machakos from Thika. They negotiated for Kshs 16,000. He was paid Kshs 6,000 and they fueled the vehicle.

10. Before reaching Machakos town, the man alighted to go and look for the keys for the store. PW6 was left with the appellant. On reaching Machakos town, the appellant showed PW6 what she said was her store. They parked the vehicle and waited for the man. The appellant offered him beer and food but he declined. The appellant brought Delmonte juice and two glasses. Both PW6 and the appellant took the juice. The man took a while to come and while waiting for him PW6 became unconscious. When he came to, he found himself on the road where he met Stanslaus Mutuku (PW9) who assisted him to call his boss PW8. He slipped into unconsciousness again and woke up in hospital the following day.

11. PW8 called the police and reported the incident. The report was circulated to police manning a road block in Loitoktok including CPL Simon Chacha (PW3). At 11. 45pm the vehicle registration number KBV XXXA reached the barrier from Kimana direction. PW3 and his colleagues stopped the vehicle. It was being driven by a man in company of the appellant. They told the police that they were going to Rombo to buy tomatoes. They were arrested and the vehicle detained by the police. Among the items recovered from the appellant was an Itel telephone handset belonging to PW6, the complainant.

12. PW9 testified that on November 12, 2015 he was driving motor vehicle registration number KCB 226R Isuzu Canter carrying tomatoes from Isineti heading to Emali on the way to Mombasa. He was in company of his conductor when at about 10km to Emali town they came across a person at the middle of the road. The person, whom PW9 identified as the complainant (PW6), asked them to help him stating that he did not know where he was. They gave him a telephone to call his boss. PW9 told the court that the person told them that he had taken soda in Machakos and had become unconscious. PW9 took the person to Emali Police Station.

13. The evidence of PW9 was confirmed by IP Daniel Kipruto (PW5) who testified that the complainant was taken to Emali Police Station by PW9. PW5 testified that PW6 looked drugged. He was taken to hospital and admitted overnight. PW6 was also attended to by Isa Mohammed (PW7) of Loitoktok District Hospital. PW7 told the court that the complainant complained of pain of the body generally as a result of having been ejected from the motor vehicle by robbers. The doctor found him with bruises on the hand, wrist, knee, thighs, and fingers. He assessed the degree of injury as grievous harm. The doctor said that the complainant has a drunken gauge.

14. The appellant was placed on her defence. She opted to give unsworn statement. She testified that she supplies beauty products and that she had come to Loitoktok to look for customers. She stated that she entered into a bar where she met a man who bought her a drink and asked for sex. They negotiated for Kshs 2,000 but they were arrested in Loitoktok as they looked for a room. She did not call witnesses.

Determination 15. My duty as the first appellate court is to read the entire record of the lower court, consider and evaluate all the evidence afresh to arrive at an independent decision. I give myself some allowance for the reason that I did not have the opportunity to observe witnesses as they testified.

16. The offence of robbery with violence is created by section 296 (2) of the Penal Code. But to understand this offence, its definition under section 295 of the Penal Code is called into focus. Section 295 defines the offence of robbery as follows:Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

17. It becomes robbery with violence under section 296 (2) of the Penal Code when the offence of robbery is committed under the following circumstances:“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 the robbery, he wounds, beats, strikes, or uses any other personal violence to any person.”

18. I have considered the grounds of appeal. The appellant accused the trial magistrate for failing to find that the plea was unequivocal. Without taking took much time on this ground, it is clear to me that the appellant misapprehended this issue. This was not a case of plea of guilty. The appellant pleaded not guilty and the case went through a full trial and a determination made. She was found guilty after consideration of all the evidence and not because she had pleaded guilty. This ground has no merit and is clearly a misunderstanding by the appellant of the court procedures.

19. The second ground of appeal relates to failure by the prosecution to prove the case beyond reasonable doubt. I have read the judgment of the lower court. It is a reasoned judgment that took into account all the elements of the offence, considered the evidence and the law and arrived at a sound conclusion.

20. I have taken time to read all the evidence on record. It is a very “clean” case with good evidence. The appellant was in company of another person. They met the complainant in Thika. They were driven by the complainant all the way from Thika to Machakos before the complainant became unconscious and came to somewhere on Emali/Loitoktok road later that night of November 12, 2015. The appellant remained with the complainant as the other man allegedly went to look for keys of the store where cowpeas where stored according to the story given to the complainant by the appellant and her accomplice.

21. The appellant had tried to persuade the complainant to eat or take a drink without success. But at some point, the complainant took Delmonte juice with the appellant. It is obvious that the juice was lazed with some intoxicating substance. It is true as argued by the appellant that the substance was not examined to inform what type of substance it was. But despite this failure, evidence shows that the complainant found himself on the road. He was found by PW9 in the middle of the road looking drunk. Evidence shows that he was admitted in hospital with injuries and in a condition that Mohammed described as drunken guage. The complainant himself testified that after taking the juice in Machakos he came to and found himself on the road where PW9 found him.

22. After careful analysis of the all the evidence and the law creating the offence of robbery with violence, it is my finding that the ingredients of the offence of robbery with violence have been proved beyond reasonable doubt. The appellant was in company with another person and although no gun was or any other weapon was found with her, the complainant had sustained injuries on his body consistent with someone roughly manhandled and perhaps thrown out of the motor vehicle as evidence shows.

23. Further, the appellant was arrested in the motor vehicle stolen from the complainant. She was also found in possession of the phone belonging to the complainant. This was a few hours after these items had been stolen from the complainant. As clearly demonstrated in the judgment of the lower court, the doctrine of recent possession applies in this case as well. Given the circumstances of this offence, it is clear to this court as it was found by the trial magistrate that the offence of robbery with violence was committed and proved beyond reasonable doubt.

24. The doctrine of recent possession is also applicable in this case. I find that there was positive proof that the motor vehicle registration number KBV XXXA positively identified by PW6 and PW8 as belonging to PW8 and Itel mobile handset positively identified as belonging to PW6 were found with the appellant and her accomplice; the two items had been recently stolen a few hours before they were recovered.

25. It is not true that the trial court did not consider the defence of the appellant. The judgment is clear that the trial court considered the defence of the appellant but nonetheless found the prosecution having proved its case beyond reasonable doubt. This court, sitting on appeal has also considered the appellant’s defence. She has no duty under the law to prove her innocence. The prosecution bears the duty of proving the case against an accused person beyond reasonable doubt. I find the evidence sufficient to prove the case against the appellant beyond reasonable doubt.

26. On the issue of harsh sentence, I have considered this ground of appeal. The sentence under section 296 (2) of the Penal Code is death. This penalty is couched in mandatory terms. However, the trial court sentenced the appellant to 25 years imprisonment. I have no reason to interfere with that sentence. It is reasonable in the circumstances of this case.

27. Consequently, I find that I have no reason to disturb the findings of the lower court. It is my finding that this appeal has no merit and must fail. The same is dismissed. The appellant shall continue serving the sentence.

28. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 11TH OCTOBER 2022. S N MUTUKUJUDGE