1 The appellant was charged, Convicted and sentenced to serve 20 years imprisonment for the offence of Robbery with Violence Contrary to section 295 as read with section 296(2) of the penal Code. The particulars were on 13th day of November 2016 at Ongata Rongai township in Kajiado North within Kajiado County, jointly with others not before the court while armed with craw bars robbed one Hannah Wanjiku Mwangi of Ksh 563,000 the property of the said Hannah Wanjiru Mwangi and at the time of the robbery used actual violence on Hannah Wanjiku Mwangi.
2 Dissatisfied with the Conviction and Sentence, the appellant preferred the present appeal on the following grounds; that the trial Magistrate Convicted and Sentenced the Appellant of the offence charged, notwithstanding, that the prosecution failed to prove the case beyond reasonable doubt, that the evidence was riddled with contradictions and inconsistencies and that the vital elements of the offence had not be established as required by law.
3 As a first appellate court I am required to revisit and re-evaluate the evidence afresh, assess the same independently and make my own conclusions bearing in mind the limitations inherent in the appellate process that I neither saw nor heard the witnesses testify, and cannot therefore comment on their demeanour an important aspect in a criminal trial. See Okeno vs Republic [1972] E.A 32. And further the Court of Appeal case of Mark Oiruri Mose vs. Republic (2013) eKLR
4 PROSECUTION CASE
5 The prosecution called 9 witnesses to support the charge against the appellant and his co-accused Stephen Kimani Ndungu.
6 PW1 a 93-year-old lady who had been staying at her son’s home in Ongata Rongai on account of illness was at home on the material day. she was preparing to bathe when she heard someone calling her cucu cucu! i.e grand ma, grand ma. The house was locked from inside and she had the key and no one could open from outside unless she gives out the key. She told the court that she went to the seating room and saw Kimani who was the day watchman together with justin a night guard. The latter was outsourced from a security company. The two asked her to give them the keys so they could get inside the house as the owner of the house, his son had sent some people to come and fix the TV. She agreed and gave the Stephen Kimani Ndungu the key and the two got into the house. She went to her bed. While there she told the court that she was blind folded and ordered to stop screaming. She bit Kimani finger and in turn Kimani slapped her so hard and tied her hands and legs using a rope. She was placed on the bed and after a while the two left. She went to the seating room and found some cartons had been ransacked. Upstairs she found the clothes scattered all over. After a while, Mbogo arrived with the police and told her that he had been informed by Kimani and Agustine that there were robbers in the house. The witness told them that it was the two who had actually attacked her.
7 In cross examination, the witness told the court that he knew the 1st accused quite well and recognized his voice and that he was the one who asked for the keys in Kikuyu language. Kimani came later around 11:00am. He was not in the company of the Mbogo and police officers.
8 PW2 SAMUEL MBOGO MWANGI told the court that on 13th November 2016 at around 9:00am he left the house together with his wife and left behind his mother (pw1), the caretaker Stephen Kimani and Augustine a night watchman at his home. At around 9:30 am the Stephen Kimani Ndungu, called and informed him that he had gone to his (Kimani’s) home and when he later went back to the witness home, he found the gate had not been opened and the dogs had not been released from the kennel. The witness informed the company’s security supervisor one mutisya about the incident. Mutisya passed by the witness place of work and gave him the key. He proceeded to the witness home and found the Stephen Kimani standing outside the gate. He (mutisya) entered the gate and gave the witness mother his phone to speak to him. Pw1 explained to him over the phone what had transpired and specifically that it was Kimani and Agustine who attacked her. The witnessed then rushed home and noted that about ksh.550,000 was missing and a further Ksh.130,000 that belonged to his wife as well.
9 Agustine disappeared for about two and half weeks and was apprehended in Busia while the Stephen Kimani was arrested later. It was Stephen Kimani who called and informed the witness that the appellant herein was not present and the gate was closed.
10 PW4 JANE WAGATURI KAMAU testimony are in material particulars the same and corroborates the evidence of her husband PW2. She told the court that she left home together with pw2 at around 9:00 am and left behind her mother in-law, Stephen Kimani and Augustine Ndege. At around 9:30 her husband was called by the Stephen Kimani and informed that he (appellant) had tried to call Augustine but his phone was off. Later when she went home, she found her mother-in-law crying saying that Kimani had attacked and tied her using a rope. She also realized that her ksh 13,000 kept in the children bedroom was missing.
11 PW6 NO 85888 CPL JUSTICE MBAIKA told the court that on the material day while with PC Kingori and Inspector Muli, he received a call from Mwangi (pw2) a member of the public who told them that his house had been broken into and valuables stolen. They proceeded to his house and found him there with his mother and a care taker, Stephen Kimani who took them inside the house. They established that indeed the home had been broken into as clothes were scattered all over the house. Pw1 HANNAH WANJIKU was interrogated. She told the officers that the watchman (Justus), the appellant herein had requested for the key to the door and she gave him. That the said Justus opened the door and entered with two other men who tied her legs and hands.
12 In cross examination by the appellant, the old lady stated that it was Justus who had asked for the key to the door.
13 PW7 Quinted Odenge a data Manager Safaricom Security department received request from the DCIO Ongata Rongai regarding the details of two cell phone number 0710517339 and 0726598702 to establish their respective owners and location on specific times. He also did the analysis in respect to number 0710517339 registered in the name of Omoka Ndoge of ID Number 28162989. He did the analysis and produced the call data as evidence in court.
14 The Arresting officer PW8 NO 101909 PC EVAN NJOGU testified and explained the steps taken in this matter leading to the arrest of Augustine Ndege in busia on account of information received from Safaricom which led them to arrest the appellant at his home in Busia. A phone registered in the name of Fred Omoke was recovered with the appellant. It was established that Fred Omoke is the appellant brother. The two were arrested and taken to Ongata Rongai police station for further investigations.
15 PW9 NO 70667 PC AUGUSTINE CHEGE the investigating officer testified and told the court he investigated the matter took the statements of witnesses and together with SGT Odhiambo visited the scene of crime where photographs. He established that the appellant herein was employed by a security company and obtained his details from them. A payslip from the security firm the appellant worked confirmed that indeed he was an employee of the company. This was also confirmed by the Director of the security company.
16 On the basis of the prosecution evidence, the court determined that a prima facie case had been made against the appellant to require his defence. The appellant elected to give sworn testimony and called no witness.
17 In his testimony, the appellant told the court that he worked as a security guard at the home of Samuel Mwangi Mbogo and that while there, he differed with the PW2 because he found him sleeping on the job at night. Due to his disagreement, he decided to leave or have his assignment changed to another location. When the supervisor failed to reassign him to another place, he went decided to go to Busia.
18 Analysis and determination
19 This being a first appellate court, I am required to re-evaluate and re-analyze the evidence on record afresh and draw my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. (See Okeno v Republic [1972] EA 32).
20 I have evaluated the entire evidence by the prosecution and the defense, and find that broadly the issue for determination in this appeal is
Whether the offence of robbery with violence with which the appellant was charged with was proved beyond reasonable doubt.
21 Section 296(2) of the Penal Code provides that a person commits the offence of robbery with violence if, at the time of the robbery or immediately before or after, he—
i. is armed with any dangerous or offensive weapon or instrument, or
ii. is in company with one or more other persons, or
iii. immediately before or after the robbery, wounds, beats, strikes, or uses any other personal violence to any person.
22 It is sufficient if any one of the above ingredients is proved (Oluoch v Republic [1985] KLR 549).
23 I have considered the appellants submissions as well as the submissions by the state in relation to this appeal.
24 The prosecution clearly led evidence to demonstrate that there had been violent attack on the complaint PW1 as a result of which some properties particularized in the charge sheet and belonging to her son (PW2) were stolen. The act of violence meted out was evidence by the manner in which she was subdued, tied and assaulted with the intention of taking the complainants sons property. all the elements of the offence were present in the instant case.
25 The appellant raised a number of issues in his submissions challenging the judgement of the trial court which inter alia includes the contractions in the evidence of the witnesses. I shall deal with the issue of contradictions and inconsistencies which this appeal in my view turns on.
26 PW1 Hannah Wanjiru was the main prosecution witness against whom violence was visited. She was an old lady 93 years at the time of the incidence. She had visited her son PW2 Samuel Mbogo Mwangi and his wife in their family home in Ongata Rongai. Being of that age, she used to remain in a house locked from inside with a key so if she wants to go out to bask in the sun, she would freely open the door and enjoy the sunshine for a little while. It was while in the house early in the morning of 13th November 2016, as she was preparing to bathe that Augustine Ndege alias Justus alias Fred the appellant herein asked her to give them the key to allow some people who had been sent to fix a TV to enter the house. She specifically told the court that it was Kimani the appellant herein who spoke to her in Kikuyu language asking for the key. The evidence available is that the appellant and Kimani were at PW2 home that morning. Being a Sunday, the appellant is usually off duty but occasionally, as was the case on this particular day would remain behind to help. According to the complainant, she clearly saw the attackers and knew them as she had interacted with them for months.
27 Later that day, the PW2 was called by the appellant and told that he had gone to his home and found the gate still closed and Justus phone was off. He told him that the dogs were still locked in their kennels.
28 The witness (pw2) went to check what had happened and found Kimani in the homestead. He told the court that he doubted her mother’s account of the robbery and especially the Kimanis involvement in it on account of her advance age. That he only acted against the Kimani when he was adversely mentioned by the appellant Augustine alias Justus Ngege during interrogations. It was also clear that the complaints mentioned the appellant when she recorded her statement on 25th November 2016 in Muranga where she had gone after the incident.
29 PW6 CPL JUSTICE MBAIKA evidence is crucial in my view. This officer is one of the first responders to the robbery incident. On arrival in the company of PC Kingori and Inspector Muli, they found PW2, Mbogo Mwangi, his mother, PW1 and the caretaker the appellant herein. They interrogated the complainant who told them Justus their watchman and other people were the one who attacked and robbed her. she said that Justus requested for the key which she gave him and he entered with two other men who got hold of her, tied her and one of them slapped her. This account was given on the same day of the incident. In cross examination, the witness confirmed that it was Justus who requested for and was given the key to the house.
30 In his defence, the appellant denied his involvement in the crime stating that he had voluntarily left for his rural home in Busia when he differed with the owner of the home and the fact that the company, he worked for had declined to reassign him to another location. This aspect of the appellant defence is an afterthought. The director of the company he worked for as a security testified before the court. He made no mention of the appellant request to be reassigned duties away from the complainant’s home. The appellant in cross examination did not bring out the fact, if at all, that he had asked to be transferred to another work station nor presented himself to his supervisor and/or explained to him the challenges he faced with a view of having his posting changed.
31 It is clear from the evidence before the trial court, that the appellant had worked at the complainant (PW2) home the entire period before the robbery. There was no other night guard posted to alternate with the appellant. He worked at the home alone with the caretaker. This in my view gave PW1 ample time to interact and familiarize with him. And so, when the witness told the court that the appellant and Stephen Kimani Ndungu were the ones who committed the offence, the trial court believed her. I have no reason to doubt the courts finding above.
32 I am satisfied that the trial court considered the evidence and correctly applied the law to the facts of the case. The appellant Conviction is sound and borne out by the evidence. The same is upheld.
33 Consequently, I find that the appeal herein lacks merit and the same is dismissed. Both the Conviction and the sentence is upheld.
2 Dissatisfied with the Conviction and Sentence, the appellant preferred the present appeal on the following grounds; that the trial Magistrate Convicted and Sentenced the Appellant of the offence charged, notwithstanding, that the prosecution failed to prove the case beyond reasonable doubt, that the evidence was riddled with contradictions and inconsistencies and that the vital elements of the offence had not be established as required by law.
3 As a first appellate court I am required to revisit and re-evaluate the evidence afresh, assess the same independently and make my own conclusions bearing in mind the limitations inherent in the appellate process that I neither saw nor heard the witnesses testify, and cannot therefore comment on their demeanour an important aspect in a criminal trial. See Okeno vs Republic [1972] E.A 32. And further the Court of Appeal case of Mark Oiruri Mose vs. Republic (2013) eKLR
4 PROSECUTION CASE
5 The prosecution called 9 witnesses to support the charge against the appellant and his co-accused Stephen Kimani Ndungu.
6 PW1 a 93-year-old lady who had been staying at her son’s home in Ongata Rongai on account of illness was at home on the material day. she was preparing to bathe when she heard someone calling her cucu cucu! i.e grand ma, grand ma. The house was locked from inside and she had the key and no one could open from outside unless she gives out the key. She told the court that she went to the seating room and saw Kimani who was the day watchman together with justin a night guard. The latter was outsourced from a security company. The two asked her to give them the keys so they could get inside the house as the owner of the house, his son had sent some people to come and fix the TV. She agreed and gave the Stephen Kimani Ndungu the key and the two got into the house. She went to her bed. While there she told the court that she was blind folded and ordered to stop screaming. She bit Kimani finger and in turn Kimani slapped her so hard and tied her hands and legs using a rope. She was placed on the bed and after a while the two left. She went to the seating room and found some cartons had been ransacked. Upstairs she found the clothes scattered all over. After a while, Mbogo arrived with the police and told her that he had been informed by Kimani and Agustine that there were robbers in the house. The witness told them that it was the two who had actually attacked her.
7 In cross examination, the witness told the court that he knew the 1st accused quite well and recognized his voice and that he was the one who asked for the keys in Kikuyu language. Kimani came later around 11:00am. He was not in the company of the Mbogo and police officers.
8 PW2 SAMUEL MBOGO MWANGI told the court that on 13th November 2016 at around 9:00am he left the house together with his wife and left behind his mother (pw1), the caretaker Stephen Kimani and Augustine a night watchman at his home. At around 9:30 am the Stephen Kimani Ndungu, called and informed him that he had gone to his (Kimani’s) home and when he later went back to the witness home, he found the gate had not been opened and the dogs had not been released from the kennel. The witness informed the company’s security supervisor one mutisya about the incident. Mutisya passed by the witness place of work and gave him the key. He proceeded to the witness home and found the Stephen Kimani standing outside the gate. He (mutisya) entered the gate and gave the witness mother his phone to speak to him. Pw1 explained to him over the phone what had transpired and specifically that it was Kimani and Agustine who attacked her. The witnessed then rushed home and noted that about ksh.550,000 was missing and a further Ksh.130,000 that belonged to his wife as well.
9 Agustine disappeared for about two and half weeks and was apprehended in Busia while the Stephen Kimani was arrested later. It was Stephen Kimani who called and informed the witness that the appellant herein was not present and the gate was closed.
10 PW4 JANE WAGATURI KAMAU testimony are in material particulars the same and corroborates the evidence of her husband PW2. She told the court that she left home together with pw2 at around 9:00 am and left behind her mother in-law, Stephen Kimani and Augustine Ndege. At around 9:30 her husband was called by the Stephen Kimani and informed that he (appellant) had tried to call Augustine but his phone was off. Later when she went home, she found her mother-in-law crying saying that Kimani had attacked and tied her using a rope. She also realized that her ksh 13,000 kept in the children bedroom was missing.
11 PW6 NO 85888 CPL JUSTICE MBAIKA told the court that on the material day while with PC Kingori and Inspector Muli, he received a call from Mwangi (pw2) a member of the public who told them that his house had been broken into and valuables stolen. They proceeded to his house and found him there with his mother and a care taker, Stephen Kimani who took them inside the house. They established that indeed the home had been broken into as clothes were scattered all over the house. Pw1 HANNAH WANJIKU was interrogated. She told the officers that the watchman (Justus), the appellant herein had requested for the key to the door and she gave him. That the said Justus opened the door and entered with two other men who tied her legs and hands.
12 In cross examination by the appellant, the old lady stated that it was Justus who had asked for the key to the door.
13 PW7 Quinted Odenge a data Manager Safaricom Security department received request from the DCIO Ongata Rongai regarding the details of two cell phone number 0710517339 and 0726598702 to establish their respective owners and location on specific times. He also did the analysis in respect to number 0710517339 registered in the name of Omoka Ndoge of ID Number 28162989. He did the analysis and produced the call data as evidence in court.
14 The Arresting officer PW8 NO 101909 PC EVAN NJOGU testified and explained the steps taken in this matter leading to the arrest of Augustine Ndege in busia on account of information received from Safaricom which led them to arrest the appellant at his home in Busia. A phone registered in the name of Fred Omoke was recovered with the appellant. It was established that Fred Omoke is the appellant brother. The two were arrested and taken to Ongata Rongai police station for further investigations.
15 PW9 NO 70667 PC AUGUSTINE CHEGE the investigating officer testified and told the court he investigated the matter took the statements of witnesses and together with SGT Odhiambo visited the scene of crime where photographs. He established that the appellant herein was employed by a security company and obtained his details from them. A payslip from the security firm the appellant worked confirmed that indeed he was an employee of the company. This was also confirmed by the Director of the security company.
16 On the basis of the prosecution evidence, the court determined that a prima facie case had been made against the appellant to require his defence. The appellant elected to give sworn testimony and called no witness.
17 In his testimony, the appellant told the court that he worked as a security guard at the home of Samuel Mwangi Mbogo and that while there, he differed with the PW2 because he found him sleeping on the job at night. Due to his disagreement, he decided to leave or have his assignment changed to another location. When the supervisor failed to reassign him to another place, he went decided to go to Busia.
18 Analysis and determination
19 This being a first appellate court, I am required to re-evaluate and re-analyze the evidence on record afresh and draw my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. (See Okeno v Republic [1972] EA 32).
20 I have evaluated the entire evidence by the prosecution and the defense, and find that broadly the issue for determination in this appeal is
Whether the offence of robbery with violence with which the appellant was charged with was proved beyond reasonable doubt.
21 Section 296(2) of the Penal Code provides that a person commits the offence of robbery with violence if, at the time of the robbery or immediately before or after, he—
i. is armed with any dangerous or offensive weapon or instrument, or
ii. is in company with one or more other persons, or
iii. immediately before or after the robbery, wounds, beats, strikes, or uses any other personal violence to any person.
22 It is sufficient if any one of the above ingredients is proved (Oluoch v Republic [1985] KLR 549).
23 I have considered the appellants submissions as well as the submissions by the state in relation to this appeal.
24 The prosecution clearly led evidence to demonstrate that there had been violent attack on the complaint PW1 as a result of which some properties particularized in the charge sheet and belonging to her son (PW2) were stolen. The act of violence meted out was evidence by the manner in which she was subdued, tied and assaulted with the intention of taking the complainants sons property. all the elements of the offence were present in the instant case.
25 The appellant raised a number of issues in his submissions challenging the judgement of the trial court which inter alia includes the contractions in the evidence of the witnesses. I shall deal with the issue of contradictions and inconsistencies which this appeal in my view turns on.
26 PW1 Hannah Wanjiru was the main prosecution witness against whom violence was visited. She was an old lady 93 years at the time of the incidence. She had visited her son PW2 Samuel Mbogo Mwangi and his wife in their family home in Ongata Rongai. Being of that age, she used to remain in a house locked from inside with a key so if she wants to go out to bask in the sun, she would freely open the door and enjoy the sunshine for a little while. It was while in the house early in the morning of 13th November 2016, as she was preparing to bathe that Augustine Ndege alias Justus alias Fred the appellant herein asked her to give them the key to allow some people who had been sent to fix a TV to enter the house. She specifically told the court that it was Kimani the appellant herein who spoke to her in Kikuyu language asking for the key. The evidence available is that the appellant and Kimani were at PW2 home that morning. Being a Sunday, the appellant is usually off duty but occasionally, as was the case on this particular day would remain behind to help. According to the complainant, she clearly saw the attackers and knew them as she had interacted with them for months.
27 Later that day, the PW2 was called by the appellant and told that he had gone to his home and found the gate still closed and Justus phone was off. He told him that the dogs were still locked in their kennels.
28 The witness (pw2) went to check what had happened and found Kimani in the homestead. He told the court that he doubted her mother’s account of the robbery and especially the Kimanis involvement in it on account of her advance age. That he only acted against the Kimani when he was adversely mentioned by the appellant Augustine alias Justus Ngege during interrogations. It was also clear that the complaints mentioned the appellant when she recorded her statement on 25th November 2016 in Muranga where she had gone after the incident.
29 PW6 CPL JUSTICE MBAIKA evidence is crucial in my view. This officer is one of the first responders to the robbery incident. On arrival in the company of PC Kingori and Inspector Muli, they found PW2, Mbogo Mwangi, his mother, PW1 and the caretaker the appellant herein. They interrogated the complainant who told them Justus their watchman and other people were the one who attacked and robbed her. she said that Justus requested for the key which she gave him and he entered with two other men who got hold of her, tied her and one of them slapped her. This account was given on the same day of the incident. In cross examination, the witness confirmed that it was Justus who requested for and was given the key to the house.
30 In his defence, the appellant denied his involvement in the crime stating that he had voluntarily left for his rural home in Busia when he differed with the owner of the home and the fact that the company, he worked for had declined to reassign him to another location. This aspect of the appellant defence is an afterthought. The director of the company he worked for as a security testified before the court. He made no mention of the appellant request to be reassigned duties away from the complainant’s home. The appellant in cross examination did not bring out the fact, if at all, that he had asked to be transferred to another work station nor presented himself to his supervisor and/or explained to him the challenges he faced with a view of having his posting changed.
31 It is clear from the evidence before the trial court, that the appellant had worked at the complainant (PW2) home the entire period before the robbery. There was no other night guard posted to alternate with the appellant. He worked at the home alone with the caretaker. This in my view gave PW1 ample time to interact and familiarize with him. And so, when the witness told the court that the appellant and Stephen Kimani Ndungu were the ones who committed the offence, the trial court believed her. I have no reason to doubt the courts finding above.
32 I am satisfied that the trial court considered the evidence and correctly applied the law to the facts of the case. The appellant Conviction is sound and borne out by the evidence. The same is upheld.
33 Consequently, I find that the appeal herein lacks merit and the same is dismissed. Both the Conviction and the sentence is upheld.