[2023] KEHC 24107 (KLR)

Wamwea v Republic (Criminal Appeal E050 of 2022) [2023] KEHC 24107 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24107 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Appeal E050 of 2022

J Wakiaga, J

October 24, 2023

Between

Peter Warui Wamwea

Appellant

and

Republic

Respondent

(Being an appeal from the original convicting and sentence in Muranga CMCCC NO 1494 of 2019 delivered on 30 th September 2021)

Judgment

1. The Appellant was charged tried, convicted and sentenced to suffer death for the offence of robbery with violence contrary to section296(2) of the Penal code the particulars of which were that on the 11th day of august 2019 at Kigetuini shopping centre Murang’a East Sub county with Muranga County jointly with others not before the Court while being armed with dangerous /offensive weapons namely machetes robbed Lyphylatah waithera Muthoni cash kshs 13800, mobile phone make infinix valued at 11000 samsung phone valued at kshs 2000 hand bag valued at 1500 and spectacles valued at 3000 and immediately before the time of the said robbery threatened to use actual violence on the same .

2. Being dissatisfied by the said conviction and sentence, he filed this appeal and raised the following grounds of appeal:a.The trial Court erred in law and fact by convicting him while the conditions for identification was not conduciveb.The ingredients of the offence were not proven.c.The identification pared was defectived.The evidence tendered were contradictory, inconsistent and an afterthoughte.No item was recovered from the Appellant and the judgement of the Court was against the weight of the evidence tenderedf.The Appellant defence was not considered and the Court shifted the burden of proof upon the same.

Submissions 3. Directions were issued that the appeal be disposed of by way of written submissions and the Appellant to that effect filed an amended ground of appeal and written submissions which he relied upon. It was contended that he was not properly identified as the complainant did not in his first report give his name though she indicated that she recognized him at the scene. It was submitted that the suspect mentioned by the complaint in her report was not the Appellant and that as was stated in the case of George Bundi Mrimberias v R Criminal appeal no 352 of 2006 when a witness failed to mention the name of the assailant at the earliest opportunity, that weakens the prosecution case.

4. It was submitted that where identification is based on recognition, there is no better mode of identification than by name as was stated in Simiyu& another v Republic [2005] eKLR, and that failure by the Court to consider that aspect of evidence shows that it dealt with the evidenced in a perfunctory manner. It was submitted that the evidence of the identification of the Appellant through recognition was not free from error as the evidence on record was that the complainant was attacked by four people who were not known to her and she could not see properly because they had taken her spectacles.

5. On the identification pared it was submitted that the same did not comply with the procedures set by the Court of appeal in David Mwita Wanja & 2 others v Republic [2007] e KLR and as contained in the National Police Service Standing Orders Chapter 46 par 6. It was contended that the prosecution witnesses contradicted each other as regards the identification of the Appellant.

6. It was contended that the circumstantial evidence of the Appellant having requested to escort the complainant was not strong enough to sustain a conviction and mere suspicion cannot form a basis for conviction as was stated in Mary Wanjiku Gichira v Republic.

7. It was submitted that the Appellant alibi defence was not considered by the Court and that the sentence was harsh and excessive as the mandatory nature of the same was challenged in the case of Joseph Kaberia Kahinga & 11 other v AG petition No 618 of 2010.

8. On behalf of the Respondent, it was contended that all the ingredients of the offence were proved and that the Appellant was positively identified by PW1as corroborated by PW2 and as confirmed through the identification pared conducted thereafter. It was contended that a conviction can be sustained based on the evidenced of one identifying witness if it is shown that the conditions were favourable as was stated in the cases of Ogeto v Republiuc [2004] e KLR and Roria v Republic [1967] EA 583.

9. It was contended that when the Appellant was arrested the police conducted an identification pared where the Appellant was positively identified as per the evidence of PW5 and that the purpose of the identification pared is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify as was stated in Samuel Kilonzo Musau v Republic [20124] e KLR .

10. It was contended that the Appellant defence was a mere denial and that the same did not substantiate his alibi defence. On sentence it was contended that the same was sentenced to death which is the penalty provided for under section 296(2) and that the trial Court did not act on wrong principles in passing out the same.

Proceedings 11. This being a first appeal, the Court is required to re-evaluate the evidence tendered before the trial Court and to come to its own determination thereon while giving allowance to the fact that unlike the trial Court it did not have the advantage of seeing and hearing witnesses.

12. PW1 Lyphylatah Waithera Muthoni, stated that while closing the shop , the Appellant who was known to her as peter warui and who was a security guard at Gitari Primary school requested to escort her home but she declined as she was waiting for the watchman and that as she entered into their compound she saw four people by the aid of the light from the torches, who ordered her to remove all the cash and her belonging and that she was able to recognize the Appellant through his long coat which he was wearing. In cross examination she stated that the Appellant had a torch which enable her to see him and that she gave his name to the police. She stated that the keys were recovered from the Appellant.

13. PW2 David Charane Kuirwa, stated that he escorted the complaint home and four people emerged from an incomplete building within the compound and that he was able to identify the Appellant who was a watchman in the neighbouring school and that he was wearing as hat and a long jacket.

14. PW3 PC Musembe Anyona, received PW1 at the police station who told him that she had been assailed by the Appellant whose name she gave as peter Warui who removed her glasses as the other assailants held PW2 and that the Appellant thereafter escaped to Mukurweini -nyeri and upon his arrest an identification pared was conducted by PW5 Inspector Boniface Khalwale where the Appellant was positively identified. He stated that he briefed the suspect on the rules of pared and that he did not force the Appellant to sign the pared forms.

15. PW4 Corp Augustine Cherono, stated that the Appellant was found in the house of his co-accused who was not identified at the pared. He stated that whereas the complainant did not give the Appellant’s name, she indicated that she knew him.

16. When put on his defence the Appellant confirmed that he was a watchman at Gituri Primasry School and that on 17/9/2019 he received a call from the teacher to be at the school in the evening and was told that there was an officer from Muranga who was investigating a matter involving a watchman and that the following day he returned his tools of trade to the school and was paid his salary pending the completion of the investigations. On 5th October 2019 he sold a cow and started a business. On 18th he went to Mukuriweini town to look for motor vehicle to transport for him bananas and went to place of his co-accused where he was arrested from.

17. He was subjected to an identification pared where he was coerced to sign the identification pared forms. He stated that no keys belonging to the complainant allegedly recovered from him, were produced in Court and that the identification pared was not necessary since she knew him.

Determination 18. From the proceedings and the submissions herein, the following issues are identified for determination:a.Whether the Appellant was positively identifiedb.Whether the prosecution case was provedc.Whether the sentence was excessived.What final orders should the Court make on this appeal.

19. On the identification of the Appellant, the evidenced before the trial Court as re-evaluated above is that the same was identified through recognition. He was known to both PW1 and PW2 and had earlier approached PW1 with an offer to escort her home. This evidence was corroborated in material particulars through the identification pared which the trail Court found to had been properly conducted. I am therefore not persuaded by the submissions that the identification of the Appellant was not safe and free from error. The mere fact that the complainant did not give the name of the Appellant to the police was not fatal to the prosecution case in view of the uncontested evidence that she indicated that she knew him leading to his arrest.

20. The identification of the Appellant was further corroborated by the circumstantial evidence as per the evident ed of PW1 that her keys were recovered from the Appellant. The Appellant in his testimony corroborated the prosecution case that he was a watchman at the local primary school and further confirmed that after the incident he moved out of the area to Mukurweini from where he was arrested.

21. I therefore find and hold that the Appellant was positively identified and affirm the trial Courts finding thereon.

22. On the proof of the prosecution case the evidence before the Court is that the Appellant was in the company of four people and that they were armed with a panga and therefore finds no fault with the trial Courts finding thereon.

23. The Appellant’s alibi defence did not dislodge the prosecution’s case and in any event the same corroborated the prosecution case. I am not persuaded by the Appellant’s submissions that the Court shifted the burden of proof upon him by finding that he did not give a credibly testimony as having placed the same on his defence, he was in law expected to offer probable cause. He was not convicted on mere suspicion but on the credible evidence of the prosecution witnesses. His convict was therefore safe and free from error and conform this conviction.

24. On the sentence, whereas the same remains at the discretion of the trial Court, and whereas death sentence still remains valid and lawful, the Court of Appeal has pronounced itself on the unconstitutionality of the mandatory nature of the death sentence on the offence of robbery with violence and pending the outcome of the determination of the Supreme Court thereon, in sentencing the Appellant to the maximum sentence available without justifiable reason, the trial Court fell into error. As I take the view that death sentence is now reserved for the rarest of the rare cases.

25. I would therefore allow the appeal on sentence and set aside the same and in exercise of the powers of this Court as the first appellate Court having taken into account the items stolen from the complaint and the fact that there was recovery of some of them and the mitigation of the Appellant and the fact that he was a first offender substitute the same with an imprisonment term of twenty (20) years with effect from 14th October 2019 when he first appeared in Court in line with the provisions of section 333 of the Criminal Procedure Code.

26. In the final analysis I hereby dismiss the appeal on conviction and affirm the trial Court finding thereon but allow the appeal on sentence by substituting the death sentence with an imprisonment term of twenty (20) years with effect from 14th October 2019.

27. And it is ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 24TH DAY OF OCTOBER, 2023J WAKIAGAJUDGEIn the presence of:Ms Gakumu – C/ProsecutorCourt Assistant – JacklineAppellant – Present