'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL E051 OF 2022
BENSON NZYOKI...............................................................APPELLANT
-VERSUS-
REPUBLIC ......................................................................RESPONDENT
(Being an appeal from the judgement and sentence delivered on 3rd November 2022 by Hon. M. A. Otindo (P.M) in Chief Magistrate ''s Court at Machakos Criminal Case No. 425 of 2017)
JUDGEMENT
Introduction
1. The Appeal herein relates to the appellant Benson Nzyoki (was the 2nd Accused) who was charged jointly with one Elijah Videgede George (1st Accused) who filed his separate appeal. They were both charged with five (5) Counts of the offence of Robbery with violence contrary to Section 296(2) of the Penal Code. In this judgement “the Appellant” will thus refer to the 2nd Accused at the trial court. The Appellant pleaded not guilty to all the charges and the matter was set down for hearing.
2. The prosecution called twelve (12) witnesses in proving its case. At the close of the trial, the appellant was acquitted on Count 5 but convicted of the of robbery with violence contrary to Section 296(2) of the Penal Code and was sentenced to death for each of the Count l, 2, 3, 4 and 6 on 3rd November 2022 however in view of the nature of the penalty, the sentence in counts 2, 3, 4 and 6 were held in abeyance.
3. Being dissatisfied with the decision of the trial court, the appellant has lodged the instant appeal against both the conviction and sentence. The appellant has filled five (5) grounds of appeal in his undated memorandum of appeal. The appellant further filed undated submissions and summarised his grounds of appeal into six (6) as follows:
i. contradictions and inconsistencies
ii. the identification parade
iii. identification at the scene of crime
iv. the mode and lead of arrest
v. the official investigations
vi. the alibi defence
4. The Appeal is opposed by the State/Respondent who argue that the trial court properly evaluated the evidence and came to the right conclusion.
The Evidence
5. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced and the submissions made in the trial court so as to arrive at its own independent conclusion. In so doing, this court is required to always bear in mind that it neither saw nor heard the witnesses as they testified and must therefore give due allowance in that regard. (See Okeno v Republic (1972) EA 32). See also Gabriel Kamau Njoroge v Republic (1987) eKLR.
6. To enable this Court, discharge the said duty, a brief look at the evidence becomes eminent. However, this Court will not reproduce that evidence. Instead, it will incorporate the evidence as captured by the trial court in its judgment by reference since the Court did it quite well.
The Prosecutions case at trial
7. PW1 was Zacchaeus Mukabane Mandu. He testified that he was living at a place known as Kwa Mwalimu. It had 8 rooms in a plot with a perimeter wall and a gate with a toilet and bathroom in the room. They lived in room three switched the light at 7:00 P.M. and all the rooms were occupied by University Students. PW1 had lived there for one year and had never experienced any problem. PW1 recall on the night of 15th, 16th May 2017, between 12 p.m. – 2.00 a.m. with Dickson Mwirikia (deceased) and George (who is still ill) they all lived in the same room. Dickson and PW1 were leaders in Machakos University Travelling Theatre. They got back home at about 3-4 p.m. at about 5-6 p.m., they left for rehearsals, he felt as if someone was following them. PW1 was a bit suspicious but ignored. When they got to the school gate this person disappeared. They finished the rehearsals at about 9:00 P.M and left the University Compound. They got to their house and latched both bolts. It was not locked.
8. PW1 testified that they normally left the room light on and the three of them slept on the same bed. At about midnight PW1 heard the gate open and heard George scream but he was hit on the head using a metal bar, he became unconscious. When PW1 opened his eyes, he saw three people, PW1 was hit on the mouth using the metal bar. His lower jaw was dislocated. PW1 was stabbed on the head. At the time Dickson was still asleep. PW1 felt pain and could feel from a distance. He was stabbed on the face and ear. Testifying that these people said they wanted phones, laptops and money.
9. Dickson woke up and told them to take everything. Stating that they took their phones every document, money and laptop that Dickson had. After they took everything, they started cutting Dickson all over the head and face. PW1 could see as they were using a sharp object. When they tried look at one of them, he threw a sword or panga at PW1 but he missed. Another one hit him severally with a metal bar and he became unconscious he woke up and found himself at Kenyatta Hospital. These three people had locked all the other rooms from outside after taking all their phones. PW1 woke up the next day in the evening.
10. On 17th May 2017, PW1 learnt that Dickson passed on. PW1 stayed was in hospital for three weeks and was discharged 1st June, 2017. According to PW1 as this incident was going on, he saw one of the attackers before he was affected. He saw the 1st accused who was closest to him. He was wearing something like a Marvin. The 2nd accused was at a distance but he saw him. He was wearing a jacket. PW1 cannot remember the 3rd person very well. PW1 stated they were called at the police station to identify the attackers at Machakos. It was PW1, Moses Mwangi, Mary, Pauline and Patricia Mwikali and Kamau. They were told to sit outside then they were called in one by one. After going in one walk out through another way. When PW1 walked in he identified the accused. They went in twice. PW1 identified the 1st accused the 1st time. He identified Identification parade Form MFI. 6. The 2nd time PW1 was with Moses, Patricia, Pauline and Kamau. PW1 was able to identify the 2nd accused identification parade form MFI. 7
11. In cross-examination, it was the testimony of PW1 that he was asked to record a statement after the identification on how he was able to identify the attackers. PW1 narrated as someone wrote the statement at the station. PW1 saw three men enter their room but PW1 could only identify two of them. Their room was No. 3 and the light was on. Two 4x 6 beds would get into the room and a small space is left. The room was about 3-4 meters squared. PW1 the 1st accused saw very well he was sure. The 1st accused was not brown. The Marvin worn by the 1st accused was covering only his head. PW1 could state what clothing he was wearing. PW1 thought these attackers had an intention of finishing Dickson. PW1 did not have the opportunity to observe all the details as he was hit and he did not immediately wake up.
12. In Further cross-examination, PW1 testified the light was on their room. He identified a slim brown man. That he saw the 2nd attacker, that 2nd accused had a stripped T-Shirt on. PW1 saw the 1st accused vest because he was closest to him and that only the 1st Accused had a Marvin. PW1 saw the 2nd accused well but not as well as the 1st accused. 2nd accused took not more than 30 minutes in PW1’s room.
13. In re-examination, PW1 told trial court that he attended the identification parades and identified both accused person. For the 1st accused it was face and voice identification while for accused 2 it was the face. That there was no mistake. PW1 did not record the 2nd accused description because he had just come from the hospital and could not express himself well.
14. PW2 was Moses Njenga Mwangi. He told Trial Court that he was living with Patricia Mwikali and after they prepared food they slept at about 11:30 a.m. He testified that at about 12:30 a. m they were woken up by some disturbance. The doors were being knocked and Patricia woke him up. PW2 heard people outside saying ‘Fungueni milango haraka’. He heard the students in Room 3 making noise, one of them said ‘niache’. The walls were being knocked. PW1 then heard their door close and the people approached his room; his lights were off.
15. PW2 locked his doors both from inside. They spotted lights for a while and left.PW2 heard them saying even if they shouted no one will help. They passed and went ahead and demanded for a laptop. Then they went to room 3, one could hear things being knocked. They came to their room saying ‘fungueni mlango wasichana’, PW2 could hear Prisca begging them to let them negotiate. The girls refused to open the door so they broke the windows.
16. He testified that these people were persistent so the girls in room 4 opened. PW2 heard one of them ask for the laptops and phones. Priscah called Dickson while Mary called PW2. They took the laptop and phones, they beat up the girls and came to his room, broke his window and spotted light on him and PW2 opened the door.
17. PW2 switched on the light and opened the door, one of the attackers got in and asked for his laptop. PW2 gave it out very fast. He asked for the charger which PW2 gave out. According to PW2, he was holding a crow bar or machete, the other one came from behind him and took the laptop and charger which he gave him. That the 3rd person was standing at the window. PW2 gave his phone Hauwei and Nokia. He then did as if to hit PW2 but he begged and he left. The girl was still on the bed so they left. PW2 locked the door very fast and switched off his light.
18. According to PW2 he spoke face to face with the assailants so he recognized them very well. That the 1st accused is the one who took his property and passed it over to the 2nd accused. He testified that the 1st accused was wearing jackets he had a big head and was wearing a Marvin whose colour he was not sure. As per PW2 the 2nd accused was wearing a jacket. The 3rd person was not seen well by PW2. He told the trial court that when he got out, he could see blood drops from room 3. He was told Zacchaeus and Dickson had been taken to hospital. They were with George who could not talk at all. George was then taken to Level 5 emergency and was referred to Kenyatta Hospital when he came back to school he appeared not so well, so he left school. After he improved, he asked Zacchaeus where Dickson was. They later told him that Dickson had passed on.
19. On the 1st identification parade, PW2 identified the 1st accused. He recognized him from his head and even voice. He tried to hide his voice because on that night he had a crooked voice. On the 2nd parade, PW2 identified the 2nd accused, he was brown and slim, he also recognized his eyes because he looked PW2 in the eye. They were 7 people in the identification parade, 2nd Accused, he recognized him he lives in Kathemboni.
20. In cross-examination, it was the testimony of PW2 that the 1st accused person was the first person to enter his room. He had a big head and a big face. He was wearing a Marvin. PW2 recognized his voice it was crooked. He said fungueni nataka hiyo laptop- charger iko wapi. He left and came back for the phones. He was the same person who shouted hata mpige kelele hakuna mtu atawasaidia. He also “achana na hiyo akazike hao maiti. Testifying that when he went to record his statement, he was asked to describe how these attackers looked like and he did. PW2 picked the 1st accused at the identification parade. He could not remember if it was the 2nd person. PW2 was taken to the parade twice. The first time PW2 raised his hands and touched him but was told to go back to the line and be sure. The 2nd time chose him. He could not remember what position he was in the parade. He asked two people to speak so he could identify the voice. He did not ask the others to speak. He told the trial court that the police did not tell them that robbers were in the parade or whether there was a suspect. Testifying that there were approximately seven people in the were almost alike. Some did not have ears as the 1st accused person, he could not remember if they all had shoes, they were 7 people almost alike colour height and ears. He had not seen the 1st accused at the police station before the parade.
21. In cross- examination by the 2nd Accused, PW2 testified that he is the victim the accused attacked that he does not know the 2nd accused but he went to PW2’s place. Testifying that the plot had 8 rooms, he was a tenant and his room had light on. PW2 attended the parade and there about 7 people, the people were not wearing uniform and they looked alike. He stated that he described the attackers and maybe the police did not write. He recorded in his statement that he recognized the 1st Accused’s voice.
22. In re-examination, it was PW2’s testimony that the witness statement was not in his writing, he narrated as the police recorded. PW2 has stated what happened. PW2 described the 1st accused to the police and he identified him at the parade.
23. PW3 was John Kamau Njoroge. He testified that on the night of 15th- 16th May 2017 he was in his room asleep. At about midnight he heard a bang on his neighbours wall. That his neighbour was in room 3 while PW3 lived in room 2. When PW3 woke up he heard people’s voices speaking outside. He sat silently to listen. He told trial court that in room 3 there was three occupants. He noticed the voices were foreign. PW3 then heard those voices telling Mary and Priscah to open the door then he heard window panes breaking. PW3 then heard them leave room 4 for room 5 occupied by Priscah and Moses.
24. It was his testimony that when they left room 5 he heard footsteps walk to room 1 then they told the occupants to open the door then they were asked for their phones. After that they went PW3’s room and knocked. They asked PW3 to open he opened and was pushed to the wall and asked to give money that he had but he said he had none. There were a power bank and a phone, they took the power bank and placed in a bag and bottles of soda. They then pulled him and, in the process, saw his wallet and took Ksh1,500. PW3 was not able to see the faces of this people but he saw a crow bar after they parked the things in the bag, one threatened to hit him but the other one told him ‘wachana na yeye atatusaidia kuzika yule tumeua’. PW3 testified that after they left, he went back to sleep until police officers came.
25. They introduced themselves so he opened. In room 3, PW3 learnt that Dickson had been seriously injured so was Zack. The police took them to the hospital. They realized later that George was seriously injured as he could not talk. Mary was also hit. Later PW3 visited Dickson in Hospital. Dickson died. PW3 told the Trial Court that his lights were off but after he opened the door, the robbers switched on the lights. PW3 was not able to recognize any of them and that none of his belongings was recovered.
26. In cross- examination, PW3 testified that he recorded his statement soon thereafter. He was not injured. His statement was read to him and he was asked to do any corrections. He saw the body of a masculine make and brown though he did not see his face. That the 1st accused is neither masculine or light skinned.
27. In cross- examination by the 2nd accused, PW3 told the trial court that he did not recognize any of the voices of the attackers. That person who was masculine and light skinned is not in court.
PW4 was Mary Nyambura, she testified on oath that on the night of 15th- 16th May, 2017, she was watching a movie on her roommate’s laptop Priscah Wanjiru. She then fell asleep living the lights on. That after minutes to midnight, she heard as if the wall to room 3 was being hit. Priscah the asked her if she heard something but she told her to go back to bed as she was dreaming. In room 3 there was Dicky and some freshers who had come to crash. That the room was for Peter and Dicky. They heard as if there was a fight. The they heard them knock the window saying “nyinyi wasichana fungueni hapa”. They broke the window and removed the curtain. They told them to open the door. At this time, they were hiding behind the door. They kept on hitting the window grill for about 15 minutes.
28. PW4 stated that if they did not open the door and they manage to get in they would kill them. They finally opened; they pushed them on the bed. PW4 looked at one of them who hit her with a crowbar on her right shoulder. The other one told him he did not want violence. They took her roommates laptop, earrings and money. PW4 testified that two people entered their room and that the person who hit her was brown while the other was wearing a black Marvin but she did not look at him so she could not tell how he looked. PW4 could recognize the person who hit her. It was the 2nd accused who hit her. That after they took whatever they wanted, they went to room 5. They did not bother to close their door and after about 15 minutes the police came. PW4 later learnt that door 3 Dicky was unconscious while Zack was injured seriously on the ear. They were taken to hospital. She went to Machakos Level 5 the next day for treatment. Zack was fine but Dicky died. She went for his burial in Nakuru. None of the items was stolen was recovered.
29. PW4 said that there were security lights around the washrooms and another outside the gate. The same could not light the whole plot. PW4 told the trial court that after Dicky’s burial her roommate said she had seen the 2nd accused at a certain bar in Kathemboni. They later went to identification parades. PW4 identified the brown man. She produced her P3 Form MFI 8.
30. In cross examination, it was PW4’s testimony that she was in room 4 and there was security lights outside the bathrooms and outside the gate. She did not see the 1st accused. PW4 identified him according to the description by her colleagues.
31. Testifying that she identified the 1st accused by his voice. Her roommate told her the one who had a black Marvin is the one who said “fungueni hapa nyi wasichana”. He had a husky voice. She told the trial court that there were around 6 or 7 people in the parade. She cannot recall which number the 1st accused was. She told him to say “nyi wasichana fungueni hapa” and he did. They were not allowed to make any statement after identification. According to PW4 she asked about 3 men in the parade to speak. They were not of the same height or body built. She did not remember if any had a Marvin or shoes. They dressed normally. PW4 did could not remember the dates she went for the identification parade but it was around 2, 3 or 4. It was not 6.00 pm. It was in the afternoon.
32. In cross-examination by the 2nd accused, it was the testimony of PW4 that the 2nd accused is the one who hit her. Testifying that there were 8 rooms in the plot but she cannot tell how many occupants. They had a light on so she was able to see the 2nd accused. She told the police there was light. That it was not recorded. She said the person who hit her was brown (it was not recorded) she cannot remember the date of the parade but there were between 6-10 people. These people were all different. Testifying that 2nd accused is the one who hit her because she looked at him so he saw the 2nd accused well. 2nd accused is brown. That he had a black jacket. They were not called to record a statement after the parade. PW4 gave 2nd accused Kshs.900/=. This is what was stolen. She recorded that Kshs.1,100 was stolen.
33. In re-examination, she testified that she narrated as the police recorded her statement. What she had stated is what happened. That she recorded there was enough light in her room. She had the 1st accused speak but it was her roommate who told her he had a husky voice. She identified him through what she was told by her roommate. She recognized the 2nd accused well. The parade was between 2-4 p.m. or thereabouts.
34. PW5 was Priscah Wanjiru Mureithi, she testified that on the night of 15th -16th May,2017, she was in her house No.4 living with Mary. She was asleep when she heard some voices outside. She woke up and asked her if she heard anything. She told her to go back to sleeping because she was dreaming. Testifying that they then heard their window break. The light was on so they heard them say in a harsh voice fungueni mlango. They got out of the bed and hid behind the door. They threatened to kill them so they opened the door because they had bent the grills. They entered the room as they went to the bed. They took her laptop and money. They then told them to close the door. She told the Trial Court they were two people who entered the room. He was not a tall guy- medium, brown and sunken eyes. Only one spoke asking her hii ni laptop gani and she responded. The other person told her roommate to stop looking at him then hit her. She could have identified the one who took her laptop. After they left their house they went to house No. 5 after some minutes the police came. They got out and the ones who were injured Dickson, George and Zack were taken to Machakos Level 5. PW5 went to see them. She learnt that they were taken to Kenyatta- Zack and George are okay. That the other one died. She went for his burial in Nakuru. It is the 2nd accused who took her laptop. (points at accused 2). PW5 identified the 2nd accused with the sunken eyes.
35. In cross-examination, it was her testimony that she was able to identify the 2nd accused. She only participated in one identification parade. She did not identify the 1st accused. PW5 said she could positively have identified the attackers if she saw them. She identified the 2nd accused. She did not identify the 1st accused. She went for the 1st identification parade where she identified the 2nd accused.
36. In cross-examination by the 2nd accused, it was testified that she recognized the voice of the person who took her laptop. She recorded this with the police. She might have omitted to record this with the police. The lights were on. She recorded with the police.
37. In re-examination. She told the trial court she narrated to police as he recorded. Whatever she had stated what happened. She attended only one parade. She was not able to know whatever the parade she attended was the 1st or the 2nd. PW5 said that there was light. She did not know if the police omitted to record.
38. PW6 was PC Hassa Musa Kibucho. He testified that he is attached at Machakos Police Station. He recalls on 21/9/2017 at about 5.30. PW6 was called by his informer from Makutano Junction Kyumbi that there were men whom they had been looking for over crimes committed were seen at the stage. PW6 called PC Kibuga and asked him to accompany him to Makutano junction. They took a private car and rushed there and, on their way, they called the OCS and informed him of what was going on. On arrival they met the informer who told them he was suspecting one of the two young men and pointed him to them. They stood and watched this man’s movement; he went to the Machakos stage and entered a Maruti Nissan Vannette. PW6 got into the Nissan while his colleague followed.
39. PW5 stated that when they got to a road block, the vehicle was stopped as they had called the police at the road block. He got out and they introduced themselves and he pointed out to the suspect who told them he is Videgede. They got him out of the Nissan as they released the vehicle. It was PW6’s testimony that they brought him to Machakos Police Station and handled him over to the CID. Later they were informed Videgede had been positively identified at a parade for various offences.
40. In cross examination, he told the trial court that he could not say that the accused was arrested out of suspicion. He was not involved in the identification parade. He did not recover anything suspicious or illegal from the accused. The accused told him he is a hustler. He stated that his duty was not to investigate this case, he only arrested the accused.
41. PW7 was Dr. John Mutunga. He told the trial court that he is stationed at Machakos Level 5 Hospital qualified from University of Nairobi with MbChb Practice No. A3932. PW7 had a P3 form for Zacchaeus Mukabane aged 21 years. That it is alleged that he was assaulted on 15/5/2017 by persons well known to him. He suffered blunt injury to the mouth involving the lower incisor teeth which became loose and were wired. Cut wound on right ear which was stitched. He told the trial court that it had taken 6 months before examination, probable weapon used was blunt or sharp. He had been seen by a dentist. PW7 formed the opinion that degree of injury as grievous harm on 30/11/2017. PW7 relied on treatment notes and case summary from Kenyatta National Hospital. He produced the treatment notes and case summary dated 5/6/2017, PExb 1, Lab request form PExb 2 (a), Radiology request form PExb 3. Receipt for Lab PExb 4 and P3 Form PExb 5.
42. PW7 also had the P3 form Mary Nyambura Mbugua aged 20 years. It was alleged that she was assaulted on 15/5/2017 and sustained blunt injury to the right shoulder, bruise on right shoulder. It had taken 6 months before the examination. Probable object used was blunt. She had been treated. He assessed the degree of injury as harm. PW7 produced the P3 form as exhibit PExb 8. He did not know the patients before his examination or the perpetrators.
43. In cross examination, he testified that according to the report from the police, PExt.5 stated that they were robbed by thugs not persons known to him so is PExt.8.
44. In cross examination by the 2nd accused, he lamented that Zacchaeus did not mention names of persons who injured him. According to PW7 Part 1 was filled at the police station. the date of injury was stated in Part 1 and time is 10.00 p.m. Mary did not mention any names.
45. PW8 was PC James Mwaura. He told the Trial Court that on 20/11/2017 he was called by OCS Machakos to his office where he found Inspector David Kemboi, PC Samuel Kibuga and PC Geoffrey Ngetich. That the OCS briefed them that he had information of wanted suspect having been seen with Tumba area entering a chang’aa den. They proceeded to the area and entered the den where they found the suspect. They arrested him and brought him to the station. the suspect was in a group that was seated outside the house. They arrested him immediately before they identified themselves but some of them were in uniform. Testifying that he was wanted for several crimes. He did not know him before the arrest. 2nd accused attempted to run away but they caught him.
46. In cross examination, it was PW8’s testimony that he knows the suspect was charged with robbery with violence. He did not arrest the 1st accused.
47. In cross examination by the 2nd Accused; it was testified that the Picture of the 2nd accused was in the records of the police as he was wanted. PW8 told the trial court that all he did was to arrest the 2nd accused and the scene of crime was about 4km from court. The 2nd accused were not in possession of anything at the time of his arrest.
48. PW9 was Inspector Simon Muinde Mutisya. He testified that he is No. 232872 Deputy DCIO Kathiani formerly the investigator DCI Machakos. He recalled on 22/9/2017 at about 5.15 p.m. – 6.00 p.m. he was requested by No. 440/330/17 the investigating officer Anthony Mwanguya CPL to conduct an identification parade for Videgede George (accused 1). He used Form 156 identification parade form. He used No. 46 a-n of the Force Standing Orders. He inquired from him if was willing to take up in the parade he accepted and signed the Form. He signed that his advocate and family were far so he would go on he indicated his I.D card and put a thumb print. According to PW9 he picked 9 people who had similarities with the suspect.
49. He recorded the names of the witnesses in the parade those on the line up. The identification parade was within the OCPD’s office exit and entry was one. Testifying that the suspect stood between number 3 & 4 and was identified by Mary Nyambura Mbugua a student at Machakos University. Further that the witnesses were not meeting each other. The suspect then changed and stood between No. 5 & 6. He told the trial court that Moses Njenga Mwangi did not identify the suspect. That suspect then stood between No. 7 & 8. That Priscah Wanjiru Mureithi identified him touching him. According to PW9 the suspect then stood between No. 6 & 7 and Zacchaeus Mukabane identified him by touching. That the 5th witness, Pauline Wangari Gatharu identified the suspect by touching. At about 6.00 p.m. when the identification parade was concluded the suspect said he was satisfied. He placed his thumbs print and I.D number. PW9 signed the Parade form. The witnesses did not see the suspect before conducting the identification parade. The investigating officer was also not present. He took the suspect back to the cells.
50. The witnesses told him the lights were on at the time of the incident so they saw the suspect well. PW9 did not know the suspect before all he did was conduct the identification parade. The suspect was in court (he identified the 1st accused).
51. PW9 also testified that he also recalls on the 20/11/2017 from 10.00 a.m. to 10.30 a.m. that while at work station, the investigating officer No. 74794 CPL Anthony Wanguya requested him to conduct the identification parade for Benson Nzioki Muasya alias Kanyoki (accused 2). Testifying that the investigating officer was not present at the identification parade. He inquired from the suspect if they could conduct the identification parade to which he had no objection. He said no to his suggestion on whether he needed an advocate and his family present. He accepted the parade and wrote down his name. that there were five witnesses present to do the identification. He picked eight persons from the cells. After they were put on line he called the suspect and asked him t
[...truncated]
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL E051 OF 2022
BENSON NZYOKI...............................................................APPELLANT
-VERSUS-
REPUBLIC ......................................................................RESPONDENT
(Being an appeal from the judgement and sentence delivered on 3rd November 2022 by Hon. M. A. Otindo (P.M) in Chief Magistrate ''s Court at Machakos Criminal Case No. 425 of 2017)
JUDGEMENT
Introduction
1. The Appeal herein relates to the appellant Benson Nzyoki (was the 2nd Accused) who was charged jointly with one Elijah Videgede George (1st Accused) who filed his separate appeal. They were both charged with five (5) Counts of the offence of Robbery with violence contrary to Section 296(2) of the Penal Code. In this judgement “the Appellant” will thus refer to the 2nd Accused at the trial court. The Appellant pleaded not guilty to all the charges and the matter was set down for hearing.
2. The prosecution called twelve (12) witnesses in proving its case. At the close of the trial, the appellant was acquitted on Count 5 but convicted of the of robbery with violence contrary to Section 296(2) of the Penal Code and was sentenced to death for each of the Count l, 2, 3, 4 and 6 on 3rd November 2022 however in view of the nature of the penalty, the sentence in counts 2, 3, 4 and 6 were held in abeyance.
3. Being dissatisfied with the decision of the trial court, the appellant has lodged the instant appeal against both the conviction and sentence. The appellant has filled five (5) grounds of appeal in his undated memorandum of appeal. The appellant further filed undated submissions and summarised his grounds of appeal into six (6) as follows:
i. contradictions and inconsistencies
ii. the identification parade
iii. identification at the scene of crime
iv. the mode and lead of arrest
v. the official investigations
vi. the alibi defence
4. The Appeal is opposed by the State/Respondent who argue that the trial court properly evaluated the evidence and came to the right conclusion.
The Evidence
5. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced and the submissions made in the trial court so as to arrive at its own independent conclusion. In so doing, this court is required to always bear in mind that it neither saw nor heard the witnesses as they testified and must therefore give due allowance in that regard. (See Okeno v Republic (1972) EA 32). See also Gabriel Kamau Njoroge v Republic (1987) eKLR.
6. To enable this Court, discharge the said duty, a brief look at the evidence becomes eminent. However, this Court will not reproduce that evidence. Instead, it will incorporate the evidence as captured by the trial court in its judgment by reference since the Court did it quite well.
The Prosecutions case at trial
7. PW1 was Zacchaeus Mukabane Mandu. He testified that he was living at a place known as Kwa Mwalimu. It had 8 rooms in a plot with a perimeter wall and a gate with a toilet and bathroom in the room. They lived in room three switched the light at 7:00 P.M. and all the rooms were occupied by University Students. PW1 had lived there for one year and had never experienced any problem. PW1 recall on the night of 15th, 16th May 2017, between 12 p.m. – 2.00 a.m. with Dickson Mwirikia (deceased) and George (who is still ill) they all lived in the same room. Dickson and PW1 were leaders in Machakos University Travelling Theatre. They got back home at about 3-4 p.m. at about 5-6 p.m., they left for rehearsals, he felt as if someone was following them. PW1 was a bit suspicious but ignored. When they got to the school gate this person disappeared. They finished the rehearsals at about 9:00 P.M and left the University Compound. They got to their house and latched both bolts. It was not locked.
8. PW1 testified that they normally left the room light on and the three of them slept on the same bed. At about midnight PW1 heard the gate open and heard George scream but he was hit on the head using a metal bar, he became unconscious. When PW1 opened his eyes, he saw three people, PW1 was hit on the mouth using the metal bar. His lower jaw was dislocated. PW1 was stabbed on the head. At the time Dickson was still asleep. PW1 felt pain and could feel from a distance. He was stabbed on the face and ear. Testifying that these people said they wanted phones, laptops and money.
9. Dickson woke up and told them to take everything. Stating that they took their phones every document, money and laptop that Dickson had. After they took everything, they started cutting Dickson all over the head and face. PW1 could see as they were using a sharp object. When they tried look at one of them, he threw a sword or panga at PW1 but he missed. Another one hit him severally with a metal bar and he became unconscious he woke up and found himself at Kenyatta Hospital. These three people had locked all the other rooms from outside after taking all their phones. PW1 woke up the next day in the evening.
10. On 17th May 2017, PW1 learnt that Dickson passed on. PW1 stayed was in hospital for three weeks and was discharged 1st June, 2017. According to PW1 as this incident was going on, he saw one of the attackers before he was affected. He saw the 1st accused who was closest to him. He was wearing something like a Marvin. The 2nd accused was at a distance but he saw him. He was wearing a jacket. PW1 cannot remember the 3rd person very well. PW1 stated they were called at the police station to identify the attackers at Machakos. It was PW1, Moses Mwangi, Mary, Pauline and Patricia Mwikali and Kamau. They were told to sit outside then they were called in one by one. After going in one walk out through another way. When PW1 walked in he identified the accused. They went in twice. PW1 identified the 1st accused the 1st time. He identified Identification parade Form MFI. 6. The 2nd time PW1 was with Moses, Patricia, Pauline and Kamau. PW1 was able to identify the 2nd accused identification parade form MFI. 7
11. In cross-examination, it was the testimony of PW1 that he was asked to record a statement after the identification on how he was able to identify the attackers. PW1 narrated as someone wrote the statement at the station. PW1 saw three men enter their room but PW1 could only identify two of them. Their room was No. 3 and the light was on. Two 4x 6 beds would get into the room and a small space is left. The room was about 3-4 meters squared. PW1 the 1st accused saw very well he was sure. The 1st accused was not brown. The Marvin worn by the 1st accused was covering only his head. PW1 could state what clothing he was wearing. PW1 thought these attackers had an intention of finishing Dickson. PW1 did not have the opportunity to observe all the details as he was hit and he did not immediately wake up.
12. In Further cross-examination, PW1 testified the light was on their room. He identified a slim brown man. That he saw the 2nd attacker, that 2nd accused had a stripped T-Shirt on. PW1 saw the 1st accused vest because he was closest to him and that only the 1st Accused had a Marvin. PW1 saw the 2nd accused well but not as well as the 1st accused. 2nd accused took not more than 30 minutes in PW1’s room.
13. In re-examination, PW1 told trial court that he attended the identification parades and identified both accused person. For the 1st accused it was face and voice identification while for accused 2 it was the face. That there was no mistake. PW1 did not record the 2nd accused description because he had just come from the hospital and could not express himself well.
14. PW2 was Moses Njenga Mwangi. He told Trial Court that he was living with Patricia Mwikali and after they prepared food they slept at about 11:30 a.m. He testified that at about 12:30 a. m they were woken up by some disturbance. The doors were being knocked and Patricia woke him up. PW2 heard people outside saying ‘Fungueni milango haraka’. He heard the students in Room 3 making noise, one of them said ‘niache’. The walls were being knocked. PW1 then heard their door close and the people approached his room; his lights were off.
15. PW2 locked his doors both from inside. They spotted lights for a while and left.PW2 heard them saying even if they shouted no one will help. They passed and went ahead and demanded for a laptop. Then they went to room 3, one could hear things being knocked. They came to their room saying ‘fungueni mlango wasichana’, PW2 could hear Prisca begging them to let them negotiate. The girls refused to open the door so they broke the windows.
16. He testified that these people were persistent so the girls in room 4 opened. PW2 heard one of them ask for the laptops and phones. Priscah called Dickson while Mary called PW2. They took the laptop and phones, they beat up the girls and came to his room, broke his window and spotted light on him and PW2 opened the door.
17. PW2 switched on the light and opened the door, one of the attackers got in and asked for his laptop. PW2 gave it out very fast. He asked for the charger which PW2 gave out. According to PW2, he was holding a crow bar or machete, the other one came from behind him and took the laptop and charger which he gave him. That the 3rd person was standing at the window. PW2 gave his phone Hauwei and Nokia. He then did as if to hit PW2 but he begged and he left. The girl was still on the bed so they left. PW2 locked the door very fast and switched off his light.
18. According to PW2 he spoke face to face with the assailants so he recognized them very well. That the 1st accused is the one who took his property and passed it over to the 2nd accused. He testified that the 1st accused was wearing jackets he had a big head and was wearing a Marvin whose colour he was not sure. As per PW2 the 2nd accused was wearing a jacket. The 3rd person was not seen well by PW2. He told the trial court that when he got out, he could see blood drops from room 3. He was told Zacchaeus and Dickson had been taken to hospital. They were with George who could not talk at all. George was then taken to Level 5 emergency and was referred to Kenyatta Hospital when he came back to school he appeared not so well, so he left school. After he improved, he asked Zacchaeus where Dickson was. They later told him that Dickson had passed on.
19. On the 1st identification parade, PW2 identified the 1st accused. He recognized him from his head and even voice. He tried to hide his voice because on that night he had a crooked voice. On the 2nd parade, PW2 identified the 2nd accused, he was brown and slim, he also recognized his eyes because he looked PW2 in the eye. They were 7 people in the identification parade, 2nd Accused, he recognized him he lives in Kathemboni.
20. In cross-examination, it was the testimony of PW2 that the 1st accused person was the first person to enter his room. He had a big head and a big face. He was wearing a Marvin. PW2 recognized his voice it was crooked. He said fungueni nataka hiyo laptop- charger iko wapi. He left and came back for the phones. He was the same person who shouted hata mpige kelele hakuna mtu atawasaidia. He also “achana na hiyo akazike hao maiti. Testifying that when he went to record his statement, he was asked to describe how these attackers looked like and he did. PW2 picked the 1st accused at the identification parade. He could not remember if it was the 2nd person. PW2 was taken to the parade twice. The first time PW2 raised his hands and touched him but was told to go back to the line and be sure. The 2nd time chose him. He could not remember what position he was in the parade. He asked two people to speak so he could identify the voice. He did not ask the others to speak. He told the trial court that the police did not tell them that robbers were in the parade or whether there was a suspect. Testifying that there were approximately seven people in the were almost alike. Some did not have ears as the 1st accused person, he could not remember if they all had shoes, they were 7 people almost alike colour height and ears. He had not seen the 1st accused at the police station before the parade.
21. In cross- examination by the 2nd Accused, PW2 testified that he is the victim the accused attacked that he does not know the 2nd accused but he went to PW2’s place. Testifying that the plot had 8 rooms, he was a tenant and his room had light on. PW2 attended the parade and there about 7 people, the people were not wearing uniform and they looked alike. He stated that he described the attackers and maybe the police did not write. He recorded in his statement that he recognized the 1st Accused’s voice.
22. In re-examination, it was PW2’s testimony that the witness statement was not in his writing, he narrated as the police recorded. PW2 has stated what happened. PW2 described the 1st accused to the police and he identified him at the parade.
23. PW3 was John Kamau Njoroge. He testified that on the night of 15th- 16th May 2017 he was in his room asleep. At about midnight he heard a bang on his neighbours wall. That his neighbour was in room 3 while PW3 lived in room 2. When PW3 woke up he heard people’s voices speaking outside. He sat silently to listen. He told trial court that in room 3 there was three occupants. He noticed the voices were foreign. PW3 then heard those voices telling Mary and Priscah to open the door then he heard window panes breaking. PW3 then heard them leave room 4 for room 5 occupied by Priscah and Moses.
24. It was his testimony that when they left room 5 he heard footsteps walk to room 1 then they told the occupants to open the door then they were asked for their phones. After that they went PW3’s room and knocked. They asked PW3 to open he opened and was pushed to the wall and asked to give money that he had but he said he had none. There were a power bank and a phone, they took the power bank and placed in a bag and bottles of soda. They then pulled him and, in the process, saw his wallet and took Ksh1,500. PW3 was not able to see the faces of this people but he saw a crow bar after they parked the things in the bag, one threatened to hit him but the other one told him ‘wachana na yeye atatusaidia kuzika yule tumeua’. PW3 testified that after they left, he went back to sleep until police officers came.
25. They introduced themselves so he opened. In room 3, PW3 learnt that Dickson had been seriously injured so was Zack. The police took them to the hospital. They realized later that George was seriously injured as he could not talk. Mary was also hit. Later PW3 visited Dickson in Hospital. Dickson died. PW3 told the Trial Court that his lights were off but after he opened the door, the robbers switched on the lights. PW3 was not able to recognize any of them and that none of his belongings was recovered.
26. In cross- examination, PW3 testified that he recorded his statement soon thereafter. He was not injured. His statement was read to him and he was asked to do any corrections. He saw the body of a masculine make and brown though he did not see his face. That the 1st accused is neither masculine or light skinned.
27. In cross- examination by the 2nd accused, PW3 told the trial court that he did not recognize any of the voices of the attackers. That person who was masculine and light skinned is not in court.
PW4 was Mary Nyambura, she testified on oath that on the night of 15th- 16th May, 2017, she was watching a movie on her roommate’s laptop Priscah Wanjiru. She then fell asleep living the lights on. That after minutes to midnight, she heard as if the wall to room 3 was being hit. Priscah the asked her if she heard something but she told her to go back to bed as she was dreaming. In room 3 there was Dicky and some freshers who had come to crash. That the room was for Peter and Dicky. They heard as if there was a fight. The they heard them knock the window saying “nyinyi wasichana fungueni hapa”. They broke the window and removed the curtain. They told them to open the door. At this time, they were hiding behind the door. They kept on hitting the window grill for about 15 minutes.
28. PW4 stated that if they did not open the door and they manage to get in they would kill them. They finally opened; they pushed them on the bed. PW4 looked at one of them who hit her with a crowbar on her right shoulder. The other one told him he did not want violence. They took her roommates laptop, earrings and money. PW4 testified that two people entered their room and that the person who hit her was brown while the other was wearing a black Marvin but she did not look at him so she could not tell how he looked. PW4 could recognize the person who hit her. It was the 2nd accused who hit her. That after they took whatever they wanted, they went to room 5. They did not bother to close their door and after about 15 minutes the police came. PW4 later learnt that door 3 Dicky was unconscious while Zack was injured seriously on the ear. They were taken to hospital. She went to Machakos Level 5 the next day for treatment. Zack was fine but Dicky died. She went for his burial in Nakuru. None of the items was stolen was recovered.
29. PW4 said that there were security lights around the washrooms and another outside the gate. The same could not light the whole plot. PW4 told the trial court that after Dicky’s burial her roommate said she had seen the 2nd accused at a certain bar in Kathemboni. They later went to identification parades. PW4 identified the brown man. She produced her P3 Form MFI 8.
30. In cross examination, it was PW4’s testimony that she was in room 4 and there was security lights outside the bathrooms and outside the gate. She did not see the 1st accused. PW4 identified him according to the description by her colleagues.
31. Testifying that she identified the 1st accused by his voice. Her roommate told her the one who had a black Marvin is the one who said “fungueni hapa nyi wasichana”. He had a husky voice. She told the trial court that there were around 6 or 7 people in the parade. She cannot recall which number the 1st accused was. She told him to say “nyi wasichana fungueni hapa” and he did. They were not allowed to make any statement after identification. According to PW4 she asked about 3 men in the parade to speak. They were not of the same height or body built. She did not remember if any had a Marvin or shoes. They dressed normally. PW4 did could not remember the dates she went for the identification parade but it was around 2, 3 or 4. It was not 6.00 pm. It was in the afternoon.
32. In cross-examination by the 2nd accused, it was the testimony of PW4 that the 2nd accused is the one who hit her. Testifying that there were 8 rooms in the plot but she cannot tell how many occupants. They had a light on so she was able to see the 2nd accused. She told the police there was light. That it was not recorded. She said the person who hit her was brown (it was not recorded) she cannot remember the date of the parade but there were between 6-10 people. These people were all different. Testifying that 2nd accused is the one who hit her because she looked at him so he saw the 2nd accused well. 2nd accused is brown. That he had a black jacket. They were not called to record a statement after the parade. PW4 gave 2nd accused Kshs.900/=. This is what was stolen. She recorded that Kshs.1,100 was stolen.
33. In re-examination, she testified that she narrated as the police recorded her statement. What she had stated is what happened. That she recorded there was enough light in her room. She had the 1st accused speak but it was her roommate who told her he had a husky voice. She identified him through what she was told by her roommate. She recognized the 2nd accused well. The parade was between 2-4 p.m. or thereabouts.
34. PW5 was Priscah Wanjiru Mureithi, she testified that on the night of 15th -16th May,2017, she was in her house No.4 living with Mary. She was asleep when she heard some voices outside. She woke up and asked her if she heard anything. She told her to go back to sleeping because she was dreaming. Testifying that they then heard their window break. The light was on so they heard them say in a harsh voice fungueni mlango. They got out of the bed and hid behind the door. They threatened to kill them so they opened the door because they had bent the grills. They entered the room as they went to the bed. They took her laptop and money. They then told them to close the door. She told the Trial Court they were two people who entered the room. He was not a tall guy- medium, brown and sunken eyes. Only one spoke asking her hii ni laptop gani and she responded. The other person told her roommate to stop looking at him then hit her. She could have identified the one who took her laptop. After they left their house they went to house No. 5 after some minutes the police came. They got out and the ones who were injured Dickson, George and Zack were taken to Machakos Level 5. PW5 went to see them. She learnt that they were taken to Kenyatta- Zack and George are okay. That the other one died. She went for his burial in Nakuru. It is the 2nd accused who took her laptop. (points at accused 2). PW5 identified the 2nd accused with the sunken eyes.
35. In cross-examination, it was her testimony that she was able to identify the 2nd accused. She only participated in one identification parade. She did not identify the 1st accused. PW5 said she could positively have identified the attackers if she saw them. She identified the 2nd accused. She did not identify the 1st accused. She went for the 1st identification parade where she identified the 2nd accused.
36. In cross-examination by the 2nd accused, it was testified that she recognized the voice of the person who took her laptop. She recorded this with the police. She might have omitted to record this with the police. The lights were on. She recorded with the police.
37. In re-examination. She told the trial court she narrated to police as he recorded. Whatever she had stated what happened. She attended only one parade. She was not able to know whatever the parade she attended was the 1st or the 2nd. PW5 said that there was light. She did not know if the police omitted to record.
38. PW6 was PC Hassa Musa Kibucho. He testified that he is attached at Machakos Police Station. He recalls on 21/9/2017 at about 5.30. PW6 was called by his informer from Makutano Junction Kyumbi that there were men whom they had been looking for over crimes committed were seen at the stage. PW6 called PC Kibuga and asked him to accompany him to Makutano junction. They took a private car and rushed there and, on their way, they called the OCS and informed him of what was going on. On arrival they met the informer who told them he was suspecting one of the two young men and pointed him to them. They stood and watched this man’s movement; he went to the Machakos stage and entered a Maruti Nissan Vannette. PW6 got into the Nissan while his colleague followed.
39. PW5 stated that when they got to a road block, the vehicle was stopped as they had called the police at the road block. He got out and they introduced themselves and he pointed out to the suspect who told them he is Videgede. They got him out of the Nissan as they released the vehicle. It was PW6’s testimony that they brought him to Machakos Police Station and handled him over to the CID. Later they were informed Videgede had been positively identified at a parade for various offences.
40. In cross examination, he told the trial court that he could not say that the accused was arrested out of suspicion. He was not involved in the identification parade. He did not recover anything suspicious or illegal from the accused. The accused told him he is a hustler. He stated that his duty was not to investigate this case, he only arrested the accused.
41. PW7 was Dr. John Mutunga. He told the trial court that he is stationed at Machakos Level 5 Hospital qualified from University of Nairobi with MbChb Practice No. A3932. PW7 had a P3 form for Zacchaeus Mukabane aged 21 years. That it is alleged that he was assaulted on 15/5/2017 by persons well known to him. He suffered blunt injury to the mouth involving the lower incisor teeth which became loose and were wired. Cut wound on right ear which was stitched. He told the trial court that it had taken 6 months before examination, probable weapon used was blunt or sharp. He had been seen by a dentist. PW7 formed the opinion that degree of injury as grievous harm on 30/11/2017. PW7 relied on treatment notes and case summary from Kenyatta National Hospital. He produced the treatment notes and case summary dated 5/6/2017, PExb 1, Lab request form PExb 2 (a), Radiology request form PExb 3. Receipt for Lab PExb 4 and P3 Form PExb 5.
42. PW7 also had the P3 form Mary Nyambura Mbugua aged 20 years. It was alleged that she was assaulted on 15/5/2017 and sustained blunt injury to the right shoulder, bruise on right shoulder. It had taken 6 months before the examination. Probable object used was blunt. She had been treated. He assessed the degree of injury as harm. PW7 produced the P3 form as exhibit PExb 8. He did not know the patients before his examination or the perpetrators.
43. In cross examination, he testified that according to the report from the police, PExt.5 stated that they were robbed by thugs not persons known to him so is PExt.8.
44. In cross examination by the 2nd accused, he lamented that Zacchaeus did not mention names of persons who injured him. According to PW7 Part 1 was filled at the police station. the date of injury was stated in Part 1 and time is 10.00 p.m. Mary did not mention any names.
45. PW8 was PC James Mwaura. He told the Trial Court that on 20/11/2017 he was called by OCS Machakos to his office where he found Inspector David Kemboi, PC Samuel Kibuga and PC Geoffrey Ngetich. That the OCS briefed them that he had information of wanted suspect having been seen with Tumba area entering a chang’aa den. They proceeded to the area and entered the den where they found the suspect. They arrested him and brought him to the station. the suspect was in a group that was seated outside the house. They arrested him immediately before they identified themselves but some of them were in uniform. Testifying that he was wanted for several crimes. He did not know him before the arrest. 2nd accused attempted to run away but they caught him.
46. In cross examination, it was PW8’s testimony that he knows the suspect was charged with robbery with violence. He did not arrest the 1st accused.
47. In cross examination by the 2nd Accused; it was testified that the Picture of the 2nd accused was in the records of the police as he was wanted. PW8 told the trial court that all he did was to arrest the 2nd accused and the scene of crime was about 4km from court. The 2nd accused were not in possession of anything at the time of his arrest.
48. PW9 was Inspector Simon Muinde Mutisya. He testified that he is No. 232872 Deputy DCIO Kathiani formerly the investigator DCI Machakos. He recalled on 22/9/2017 at about 5.15 p.m. – 6.00 p.m. he was requested by No. 440/330/17 the investigating officer Anthony Mwanguya CPL to conduct an identification parade for Videgede George (accused 1). He used Form 156 identification parade form. He used No. 46 a-n of the Force Standing Orders. He inquired from him if was willing to take up in the parade he accepted and signed the Form. He signed that his advocate and family were far so he would go on he indicated his I.D card and put a thumb print. According to PW9 he picked 9 people who had similarities with the suspect.
49. He recorded the names of the witnesses in the parade those on the line up. The identification parade was within the OCPD’s office exit and entry was one. Testifying that the suspect stood between number 3 & 4 and was identified by Mary Nyambura Mbugua a student at Machakos University. Further that the witnesses were not meeting each other. The suspect then changed and stood between No. 5 & 6. He told the trial court that Moses Njenga Mwangi did not identify the suspect. That suspect then stood between No. 7 & 8. That Priscah Wanjiru Mureithi identified him touching him. According to PW9 the suspect then stood between No. 6 & 7 and Zacchaeus Mukabane identified him by touching. That the 5th witness, Pauline Wangari Gatharu identified the suspect by touching. At about 6.00 p.m. when the identification parade was concluded the suspect said he was satisfied. He placed his thumbs print and I.D number. PW9 signed the Parade form. The witnesses did not see the suspect before conducting the identification parade. The investigating officer was also not present. He took the suspect back to the cells.
50. The witnesses told him the lights were on at the time of the incident so they saw the suspect well. PW9 did not know the suspect before all he did was conduct the identification parade. The suspect was in court (he identified the 1st accused).
51. PW9 also testified that he also recalls on the 20/11/2017 from 10.00 a.m. to 10.30 a.m. that while at work station, the investigating officer No. 74794 CPL Anthony Wanguya requested him to conduct the identification parade for Benson Nzioki Muasya alias Kanyoki (accused 2). Testifying that the investigating officer was not present at the identification parade. He inquired from the suspect if they could conduct the identification parade to which he had no objection. He said no to his suggestion on whether he needed an advocate and his family present. He accepted the parade and wrote down his name. that there were five witnesses present to do the identification. He picked eight persons from the cells. After they were put on line he called the suspect and asked him t
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