[2023] KECA 792 (KLR)

Wekesa v Republic (Criminal Appeal E111 of 2022) [2023] KECA 792 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KECA 792 (KLR)

Republic of Kenya

In the Court of Appeal at Eldoret

Criminal Appeal E111 of 2022

F Sichale, FA Ochieng & LA Achode, JJA

June 30, 2023

Between

Stephen Makokha Wekesa

Appellant

and

Republic

Respondent

(Appeal against the decision of the High Court at Eldoret (Mshila & Karanja JJ.) dated 19th January, 2012) In Criminal Appeal No. 167 “A” of 2009)

Judgment

1. This is the second appeal of Stephen Makokha Wekesa against the judgement of Mshila and Karanja JJ, delivered at Eldoret on the January 19, 2012. The appellant alongside five others were arrested and arraigned before the Magistrate’s Court at Eldoret, on two charges of robbery with violence contrary to section 29(2)of the Penal Code. They were convicted as charged and sentenced to death.

2. The particulars of the first offence were that the appellant and 5 others, on the night of August 23/24, 1999, in Trans Nzoia district within the then Rift Valley province, jointly, while armed with pangas and rungus, robbed MW of one motor vehicle reg KAC xxxP Peugeot xxx pickup matatu, several kitchen utensils, one national radio cassette and cash Kshs 11,000/-, all valued at Kshs 820,000/= and immediately before or immediately after the time of the robbery, used actual violence against the said MW.

3. The particulars of the second count were that the appellant and 5 others, on the same night and in the same compound, robbed James Kuria Kariuki of cash Kshs 700/- and wounded him during the robbery.

4. The appellant and the five others all denied the charges, leading to a trial in which the prosecution presented seven witnesses to prove its case. At the close of the prosecution case all the accused persons were found to have a case to answer and were placed on their defence. The appellant gave a sworn statement in his defence without calling any witnesses.

5. A synopsis of the prosecution case was that on the material date, the robbers struck in a compound that had three houses: the main house where MW (PW1) was, a second house where her daughters (MG (PW2), JM (PW4) and MW) were, and a third house where PW1’s step son, JKM (PW6) and her brother-in-law were.

6. The robbers attacked the second house first. PW2 told the court that when the four intruders came in to their house, she was able to see them by the help of a lit hurricane lamp that was in the house. That two of the intruders pulled her out of the house and ordered her to take them where their mother, PW1 was. She identified the appellant as one of the intruders who ordered her to take them to where the mother was.

7. PW1 told the court that she opened the door at the sound of PW2 calling her and saw, by the light of a hurricane lamp that was on in her house, five men armed with machetes and whips. One of the men demanded the car keys from her and he took the keys to motor vehicle registration no- KAC xxxP, Peugeot xxx pick-up from her. They demanded the keys to a second motor vehicle registration no- KAG xxxG, Isuzu Pougher, and when she told them that her step son PW6, had them, they made her escort them to where PW6 was.

8. PW6 testified that on the material day he was in the house with his uncle. They opened the door for his mother, PW1 and six men barged in with her. He could see them by the help of a lit hurricane lamp. The intruders tied their hands behind their backs and beat them up demanding to be given money. He directed them to take Kshs 700 from his trouser pocket and he identified the appellant as the one who extracted the money therefrom. The intruders also took the car keys for the second motor vehicle, the Isuzu Pougher and tried to start it without success.

9. The intruders took PW1 back to her house and in to her bedroom where they assaulted her demanding that she gives them Kshs 200,000/-. She gave them Kshs 11,000/= which was the day’s earnings from the matatu business. She too identified the appellant as the person to whom she gave the money, before two of the men took turns raping her.

10. PW4 recalled that on the day of infamy, she was awakened from sleep by people who entered their house as she and her sisters were sleeping. The people were armed with machetes and torches. They enquired on the whereabouts of her father, and directed her to take them to their mother’s house. She declined to escort them and told them to ask her eldest sister, PW2, to do so. She also identified the appellant as one of the intruders she saw that night. It was her evidence that one of the intruders raped her before the intruders escaped in her father’s car.

11. PW6 testified that two of the intruders later returned to fetch him to go and start motor vehicle registration no- KAC xxxP Peugeot xxx pick-up for them. He complied and thereafter the men brought him back into the house, tied him up, locked them inside the house and drove off in the vehicle. PW6 and the uncle were able to untie themselves and leave the house through the window. They went and reported the incident at the police station.

12. Mercellous Ochindo (PW3), told the court that he had prior information that the appellant was planning to carry out a robbery at the complainants’ home before the robbery occurred. As a result, the police set a trap for the appellant but the robbery did not take place as anticipated. On the morning after the robbery herein, PW3 saw the appellant at the bus stage and arrested him, based on the earlier suspicion. The police accompanied the appellant to his house where they found the items that the complainants had reported were stolen from them during the robbery. The appellant led the police to the houses of his cohorts, where they recovered more items belonging to the complainants.

13. PW1, PW2, PW4 and PW6 also testified that on August 27, 1999 they attended an identification parade at the police station and they identified five suspects. The appellant was among them. PW1 also identified the items that were stolen from her house, and had been recovered from the houses of the appellant and his cohorts.

14. Francis Lemangi SP (PW7), the Police Officer who conducted the Identification Parade, testified that on August 27, 1999 he conducted an Identification Parade in respect of the appellant and one Mohamed Wafula Abubakar. That he informed the suspects the purpose of the parade and that they could invite a friend or an advocate to the parade and they consented to participate in it. The parade comprising of eight parade members was conducted in the corridors of the cells. The witnesses (PW1, PW2, PW4 and PW6) were accommodated in the crime branch offices and were called out one after another. They were informed that the suspects may or may not be among the members of the parade and that they all managed to identify the appellant independently. That the appellant had no questions after the parade and only stated that he was identified by mistake. PW7 prepared a certificate that he produced in court as evidence.

15. When the appellant was put on his defence, he testified that he is a business man who sells bananas. That on August 23, 1999 at around 5. 00 pm he arrived in Kitale from Kimilili and went straight to his house. That the following morning, the police arrested him at the bus stage as he was coming from collecting Kshs 2500 owed to him, for bananas that he previously supplied to his customer Grace Wangui at Kipsongo estate. He was led to a house which was locked and ordered to avail the key to the house, but he told the police that he did not stay in that house.

16. One of the police officers kicked the door in and they went in and carried everything from the house, put it in a vehicle and took it together with him to the police station. He further complained that the Identification Parade, was not properly conducted since he had already been taken outside and people had seen him. That although he was identified by three women and a man, he had been taken to the crime office where he met his identifiers, before the identification parade was conducted. He admitted to having signed the identification form, but stated that the contents of the form were not read to him.

17. The magistrate, Hon LW Gitari PM, (as she then was), upon evaluating the evidence before her, found that the prosecution had proved beyond reasonable doubt, the two counts of robbery with violence. She convicted the appellant alongside the others and sentenced them to suffer death as by law prescribed.

18. Aggrieved by the conviction and sentence, the appellant filed an appeal to the High Court. He faulted the trial magistrate for: finding that the prosecution had proved its case beyond reasonable doubt; failing to observe that the stolen items were not found in his possession; failing to observe that the prevailing circumstances during the commission of the offence were not conducive for positive identification; failing to observe that the identification parade was conducted in breach of the laid down rules and regulations and failing to consider his defence.

19. Upon considering the appeal, the judges found that there was no reason to fault the decision of the trial court, or to interfere with it. They dismissed the appeal and upheld the conviction and sentence.

20. Disquieted by the above judgment, the appellant preferred the instant appeal, raising the following grounds:a.That the appellate court failed to evaluate the evidence and issues raised on appeal as was stated in the case ofOkeno v R 1972 EA 32. b.That the identification of the appellant at the scene of crime was devoid of merits.c.That the recovered stolen property was not positively identified beyond reasonable doubts.d.That the doctrine of recent possession was not supported by the evidence.e.That the death sentence imposed and upheld is inconsistent with the 2010 constitution and it is brutal and illegal.f.That imposing two death sentences at ago demonstrates how the lower courts were erroneously and totally biased against the appellant.g.That the appellant’s arrest was contrary to section 49 of the Constitution.h.That he was not granted the right of submission during trial contrary to section 210 and 213 of the Criminal Procedure Code.i.That the proceedings are totally defectivej.That the investigation was shoddy and poor, leading to insufficient, scanty and inadmissible evidence.”

21. This appeal was canvassed by way of written submissions. The firm of M/S Reece Mwani & Company Advocates filed undated written submissions on behalf of the appellant, while the Senior Prosecution Counsel, Mr Mark Mugun, filed written submissions dated February 10, 2023 on behalf of the respondent. The submissions were highlighted by learned counsel Mr Mukhabani for the appellant and Senior Prosecution counsel Mr Mugun for the respondent during plenary hearing.

22. In his submissions, the appellant abandoned some of his grounds of appeal and collapsed the remaining ones in to four grounds to wit: the appellate court failed to re-evaluate the evidence and facts hence reached an erroneous conclusion; the prosecution did not prove the offence of robbery with violence; the identification of the appellant at the scene of crime was devoid of merit and the subsequent identification parade was improperly conducted and lastly, the death penalty imposed was unconstitutional.

23. On the first ground, Mr Mukhabani contended that the High Court failed to re-evaluate the facts and the evidence in the first appeal and that the offence of robbery with violence was not proved. He urged that the items purportedly recovered from the appellant’s house were basic household items and that the appellate court clearly shifted the burden to the appellant when it stated in its judgment that: “the stolen items were also positively identified and the appellant offered no explanation as to ownership or how he came into possession of the same”.

24. It was also submitted that the appellant was arrested for being a suspect in another robbery that did not take place, and not because he was described or linked to the current robbery by any of the witnesses. That the trial court and the appellate court erroneously relied on the evidence of PW3 alone to convict the appellant.

25. Mr Mukhabani urged that the identification parade conducted by PW7 was conducted contrary to the parade rules, to wit: PW2 saw the appellant alighting from the police vehicle before the parade; the appellant and four other suspects were placed in one parade in which PW2 was able to identify them; and that the suspects were not of similar heights and general appearance. Further, that the witnesses did not give the description of the appellant before identification.

26. At this point the appellant appeared to have abandoned the ground on sentence. Hen did not submit on it.

27. In rebuttal, Mr Mugun argued that according to the evidence of PW1 and PW2, the ordeal lasted for about one and half hours. During that period, they were able to observe the physical attributes of the appellant and were thus able to identify him at the Identification Parade. Further, that there was sufficient light from the lamps and also from the torches that the appellant and his gang used, and the complainants’ testimony remained steadfast in the heat of intense cross-examination.

28. On recent possession, counsel contended that PW3 testified that on the morning of August 25, 1999, the appellant led them to his house where they recovered the items that were later positively identified by PW1, PW2, PW4 and PW6, as having been stolen from them on the night of August 24/25, 1999. The appellant was also found with Kshs 5,280 on him. That since he had been found in possession of very recently stolen property, section 111 of the Evidence Act shifted the burden of proof to the appellant to offer a plausible reason which he failed to offer when granted the opportunity.

29. On sentence, counsel urged that section 296(2) of the Penal Code prescribes the death penalty as the sentence for the crime of robbery with violence. That since the Supreme Court clarified that the decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR (Muruatetu1), was not applicable to all cadre of cases of mandatory minimum or maximum sentences, the imposed sentence is neither illegal nor excessive.

30. This being the second appeal, we are conscious that our jurisdiction is confined to consideration of questions of law only, by dint of section 361(a) of the Criminal Procedure Code and as stated in Samuel Warui Karimi v Republic (2016) eKLR by this Court as follows:“This is the second appeal and this Court has stated many times before, it will not normally interfere with the concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings. See Chemangong v R, (1984) KLR 611. ”

31. Bearing the above in mind, the issue that falls for our consideration in the main is on identification. It is our duty to reevaluate and analyze the record to establish whether the identification parade was conducted properly, and whether the appellant was positively identified by the complainants.

32. The appellant was charged with two counts of robbery with violence contrary to section 296(2) of the Penal Code. The said section provides as follows:“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, he shall be sentenced to death.”

33. This Court has considered what constitutes the offence of robbery with violence in numerous decisions. In the case of Olouch v Republic (1985) KLR the court stated that:“…Robbery with violence is committed in any of the following circumstances:The offender is armed with any dangerous and offensive weapon or instrument; orThe offender is in company with one or more person or persons; orAt or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.”

34. Also, in the case of Dima Denge Dima & Others v Republic Criminal Appeal No 300 of 2007, it was stated that:“…The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.”

35. In the present case, it is clear that the offence of robbery with violence was committed against the complainants on the material day. The complainants testified that the perpetrators were armed with machetes and whips and that they assaulted their victims during the robbery. This is buttressed by the evidence of the medical officer Bernard Gicheru, (PW5) who examined PW1, PW4 and PW6, and observed that they had injuries and bruises. Further, the complaints testified that their property was stolen, including household items and a motor vehicle.

36. The appellant in his grounds of appeal faulted the appellate court for not conducting its role as the first appellate court properly. On the other hand, the respondent contended that the said court discharged its duty as required. In the impugned judgment the judges stated thus:“We have exhaustively scrutinized the evidence of the prosecution witnesses from the record of appeal and we have also re-evaluated and analyzed the said evidence and we find PW4, PW6 and PW7 to be reliable witnesses.”

37. The duty of the first appellate court is as was set out decades ago in the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336 is as follows: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

38. A perusal of the impugned judgment shows that the judges did indeed re-evaluate, reconsider and analyzed the evidence before them. It is therefore our view, that they discharged their mandate as the court of first appeal as required of them.

39. It is a common ground that the perpetrators who attacked the complainants committed robbery with violence. The appellant argued that the circumstances were not favorable for positive identification, and that the identification parade was not carried out properly. The respondent on the other hand, contended that the complainants were certain that the appellant was one of the perpetrators, that he was the ring leader of the gang. The respondent added that the complainants identified the appellant from the identification parade that was properly conducted by PW7.

40. On the circumstances of identification, the appellate court pronounced itself thus:“From the foregoing we are satisfied that the appellant was positively identified by PW2 and PW6. We are satisfied that the light from the hurricane lamps was sufficient to enable the above prosecution’s witnesses to see the appellant. That the length of time that the robbery took place enabled PW2 and PW6 to observe the appellant at length. That there was proximity between PW2 and the appellant when she led him to PW1’s house and there was also proximity between PW6 and the appellant when the appellant took out money from PW6’s pocket. We find that PW4 and PW6 were able to see the appellant at close range.”

41. On what to consider in the evidence in regard to the question of the circumstances of the identification, we find guidance in the often-cited decision in R v Turnbull & Others (1973) 3 AIIER 549, where the Court gave guidelines as follows:“…the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the accused under observation? At what distance: In what light: Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance”

42. It was the complainants’ evidence that their lamps were lit in their houses and that the perpetrators had torches. PW2 told the court that the appellant was among the people who went with her to PW1’s house. PW1 identified the appellant as the one who took her car key from her. PW6 identified him as the one who took money from his trouser pocket.

43. PW6 further testified that the incident lasted for about one and a half hours and after the initial interaction with the robbers in the house PW6 latter went outside with them to help start the car for them and therefore, had more time to identify the appellant. The appellant was also recognized by PW4 as the one who warned the other perpetrators to stop flashing the torches on each other’s faces. We note that there was no evidence that the perpetrators made any effort to cover their faces and that the identification parade was conducted by PW7 just three days after the incident.

44. Based on the foregoing evidence to wit: the presence of light from the hurricane lamps, the length of time the perpetrators took in the houses, and the close proximity between the appellant whose face was not covered and complainants during the incident, we agree with the two courts below that the circumstances were such that the complainants were in a position to make a positive identification,

45. The other ground of this appeal still on identification was that the identification parade was improperly conducted. The appellant argued first, that PW2 saw him as he alighted from the police vehicle before the parade was mounted. Second, that the appellant and four other suspects were placed in one parade, in which PW2 was able to identify them. Third, that the members of the parade were not of similar heights and general appearance. In rebuttal, the respondent contended that the parade was carried out in accordance with the law.

46. In respect to the identification parade the learned judges considered the arguments and pronounced themselves as follows:“From the record of appeal, we find that the Police Officer who conducted the parade was indeed called as a witness and gave evidence at the trial. We find that the identification parade was properly carried out by the said officer and the parade form was produced in court as evidence.We found that the trial magistrate did not take in to account PW2’s evidence on the Identification Parade as the same was flawed due to the fact that PW2 stated in her cross- examination by the appellant that she had seen him alight from a vehicle at the Police Station before she had identified him at the parade.Otherwise for all the other prosecution witnesses, the identification at the identification parade was properly carried out by PW7”

47. In Samuel Kilonzo Musau v Republic [2014] eKLR, this Court grappled with the question of reliability of an Identification Parade and held as follows:“The purpose of an identification parade, as explained inKinyanjui & 2 Others v Republic (1989) KLR 60, “is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion.” It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure that a witness’s attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification.”

48. Chapter 42 paragraph 7 of the National Police Standing Orders provides for the rules that a Police Officer, conducting an identification parade must adhere to. It provides that when a witness is asked to identify an accused or suspected person, the following procedure shall be followed;“(a)the accused or suspected person shall always be informed of the reasons for the parade and that he or she may have a counsellor or a friend present when the parade takes place;(b)the police officer-in-charge of the case, although he or she may be present, shall not conduct the parade.(c)the witness or witnesses shall not see the accused before the parade;(d)the accused or suspected person shall be placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as him or her;(e)where the accused or suspected person is suffering from any disfigurement, steps shall be taken to ensure that it is not specially apparent;(f)not more than one accused or suspected person shall appear on an identification parade;(g)the accused or suspected person shall be allowed to take any position he or she chooses and shall be allowed to change his or her position after each identifying witness has left if he or she so desires;(h)care shall be exercised that witnesses do not communicate with each other;(i)where the witness desires to see the accused or suspected person walk, hear him or her speak, see him or her with hat on or off, this shall be done, but in this event the whole parade shall be asked to do likewise;(j)the conducting officer shall ensure that the witness indicates the person identified, without the possibility of error by touching;(k)at the termination of the parade, or during the parade, the officer conducting it shall ask the accused or suspected person if he or she is satisfied that the parade is being or has been conducted in a fair manner and make a note in writing of his or her reply thereto in form p.156;(l)when explaining the procedure to a witness the officer conducting the parade shall tell him or her that he or she shall see a group of people which may or may not include the person responsible, and the witness shall not be told, “to pick out somebody” or be influenced in any way whatsoever;(m)a careful note shall be made after each witness leaves the parade, to record whether he or she identified the accused or suspected person and in what manner;……………………..”

49. A perusal of the evidence of PW7 reveals that the officer complied with the Police Standing Orders as provided. An excerpt of PW7’s evidence is as follows:“I informed the suspect the purpose of the parade. The suspect consented to appear in the parade. I told him he could call a friend or an advocate. He signed the parade form. The witnesses were in the crime branch office. They were MW, JM, MG and JK. After the members were arranged, I asked the suspect if he was satisfied. He chose to stand between members number 4 and 5. The suspect was Stephen Makokha. I called the witness MW. I informed her that among the members, there may be or may not be a suspect. She went round and identified the suspect. The suspect commented that he was not familiar with the witness. The witness was accommodated at the traffic office after identifying……..It was not possible for one to talk to a person from the crime office to the traffic office. I informed the suspect he could change position but he did not. I called the 2nd witness JM, the witness identified the suspect by touching. I took the witness to the traffic office. I called the 3rd witness, MG. I informed the suspect that he could change position but he did not. The witness identified the suspect by touching …..I took the witness to the traffic office. I called the last witness JK and he identified the suspect in the same position.”

50. We agree with the appellate court that the identification parade was conducted properly and as such, this ground of appeal fails.

51. The appellant’s last ground of appeal was that the sentence meted upon him was unconstitutional. However, as stated earlier, he did not expound nor submit on it. In opposition the respondent submitted that the sentence was neither excessive nor unconstitutional.

52. We are alive to the fact that mandatory minimum or maximum sentence is a subject of contention in our Courts today. We are also aware that Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) commonly known as Muruatetu II was very categorical that not all cadre of minimum or maximum sentences were pronounced unconstitutional by Francis Karioko Muruatetu & another v Republic [2017] eKLR (Muruatetu1) but only sentence in respect to murder.

53. We considered the level of violence visited upon the complainants who were held hostage for a protracted period. We also note that the learned Magistrate considered the appellant’s mitigation and sentenced him as provided by law. Subsequently, the appellate court upheld it. We agree with the decisions of the two courts below on sentence.

54. In the end we find that the conviction was safe and the sentence was constitutional. As such, we will not interfere with the holding of the two courts below. Consequently, we dismiss this appeal in its entirety.

DATED AND DELIVERED AT ELDORET THIS 30TH DAY OF JUNE, 2023F. SICHALE…………………………JUDGE OF APPEALF. OCHIENG……………………………JUDGE OF APPEALL. ACHODE………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR