(Being an appeal from the conviction and sentence delivered by Honourable Dolphin Nyamboke Sure (PM) on 29th November 2024 at Kangundo Law Court in Cr. No. EO34 of 2023)
A. INTRODUCTION
1. The appellant being aggrieved by the decision of the trial court that acquitted him for the offence of robbery with violence but convicted him for the offence of robbery under Section 295 as read with Section 296 (1) of the Penal Code, has lodged this appeal. He seeks that his conviction be quashed and the 9 years imprisonment sentence imposed be set aside.
2. The appeal is premised on the following grounds reproduced verbatim:
1) THAT the Learned Trial Magistrate erred in law in making a finding that an offence of robbery contrary to section 296(1) of the Penal Code had been established and proved against the appellant to the required standard in criminal law.
2) THAT the (learned) Magistrate erred in law and facts by failing to reconcile contradictory evidence on material facts thus arriving at the wrong conclusion.
3) THAT the (learned) Magistrate erred in law and facts by failing to observe that there was no positive identification.
4) THAT the (learned) Magistrate erred in law and facts when she found the appellant guilty of the offence charged when crucial witnesses on the side of the prosecution failed to avail in court to testify therefore shifting the burden of proof on the appellant.
5) THAT the (learned) Magistrate erred in fact while relying on circumstantial evidence which was not proven nor produced in court.
6) THAT the learned Magistrate analyzed the evidence in a perfunctory manner and thus failed to scrutinize as was expected of the court.
7) THAT the trial magistrate erred in law and fact when she shifted the burden of proof on appellant in dismissing his plausible defence.
8) THAT I pray to be supplied with certified copies of court records to adduce more evidence and more grounds.
9) THAT the sentence imposed on the appellant is harsh, excessive and punitive.
10) THAT I pray to be present during the hearing of this appeal.
B. BACKGROUND
3. Before the trial court, the appellant was charged with the offence of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. The particulars of the offence were that on the 17th day of August 2022, at around 01.00 a.m., at Hide Away bar within Tala Township in Matungulu Subcounty within Machakos County, jointly with others not before the court, while armed with a pistol and other crude weapons robbed Muli Kasia assorted brands of alcoholic drinks, soft drinks, cigarettes, 43 packets of Panadol extra, 3 flat scream televisions sets make Samsung 110 inches, Sonny 65 inches and vitron 32 inches, a laptop make Macbook, one amplifier make Pioneer, One equalizer and 12 channel mixer make Pioneer all valued at Kshs 2,420,655/= the property of Tobias Mutuku Mutua and immediately before the time of such robbery, threatened to use actual violence to the said Muli Kasia.
4. He pleaded not guilty and to prove its case, the prosecution called a total of six (6) witnesses.
C. BEFORE THE TRIAL COURT
The prosecution case
5. PW1, Fredrick Ngumbao Mwanthi, testified that he worked for Friendswise Security Firm where he is a supervisor and coordinator of the guards. That on 16th August 2022 at 6pm he was checking whether guards had reported to their various stations. That he checked at Hideaway bar. He checked until 3a.m when he went home to sleep. Before he could sleep, he was called by Peter, who works at a nearby house, and informed that the “soldier” at Hideaway Bar appeared bound and the bar broken into.
6. He went to the scene and found the gate open. He had a torch and went inside the bar. He noticed the big screen TV missing. He telephoned Tobias, the owner of the bar, and informed him. That the ‘solider’ was missing. He decided to look around to see anything strange, but he did not see anything. He took a motorbike to Nguluni and returned to the bar. He found the police had arrived. He stated that the soldier, Musembi, the guard assigned a facility behind Hideaway was missing. On cross-examination he stated that he had not seen the accused appellant herein.
7. PW2, Tobias Mutuku Mutua, stated that on 16th August 2022 at 7pm he closed Hideaway bar where he was working and went to Nairobi. At 7a.m, he was telephoned by the security guard and told that the bar had been broken into. He went back to Tala, passing through Tala Police Station where he was given 2 police officers to accompany him.
8. Upon arrival, he noted that the television was missing. The counter was broken into and assorted liquor stolen. A music system (amplifier, mixer, and equalizer) was stolen, a laptop, 2 more televisions (LG and Vitron) were missing. He stated that the security guard was present, but his hands had been bound with a nylon rope. The security guard told them that he was attacked by 4 people who tied him and stole from the bar. PW2 stated that an audit was done and it showed he lost property worth 2.4 million.
9. He stated that he had installed a CCTV and the police took the recordings. He identified the receipts for the stolen items. He was also shown photos that were generated from the CCTV and he stated that from the photos, 4 people can be seen accessing the facility through the wall using a ladder. That they could be seen stealing. That the images inside the bar were very clear because of the lighting. He testified that one of the photos was similar to the accused on the dock.
10. PW3, Muli Kasia stated that he was a casual laborer working at Tala Hideaway club. That on the night of 16th August 2022, going to the morning of 17th August 2022, thugs came through the wall and assaulted them and he lost a tooth. That they took liquor and disappeared leaving him on the ground. He stated that there were 4 people and one had a gun while others had pangas and other things. He stated that he identified one thug as he saw him when he was tying him up. That the electricity light was on. That the person used his hand to hit him on the mouth and he lost a tooth. The thugs then sat at a table and started taking liquor. Thereafter, they used a vehicle and left. He untied himself and called his boss to inform him of the theft. Notably, during the hearing before the trial court, the witness did not identify the accused from among the four people he was shown on the virtual screen. When asked about the accused he stated that he had never seen him.
11. PW4, No. 67694 Cpl Jackson Agai based at DCI headquarters, stated that in 2022 he was based at DCI-Matungulu-KBC Police Station. It was his testimony that on 25th August 2022, they were requested by OCS Tala, to take over this case. That two people had been arrested, Muli Kasia and Martin Kisau, and charged with the offence of breaking and stealing in MCCR E890 of 2022. That the offence took place at Hideaway Bar and the accused were watchmen of the club. He stated that upon taking over the case, they interrogated, Tobias, the owner of the bar who told them that there was CCTV cameras in the bar.
12. They took over the CCTV camera and took it to the DCI forensic laboratory for analysis. They got the footage and saved it in a flash disc. A report was prepared. He identified the report in court. He stated that meanwhile, during that period, there were many incidents of bar breaking in Matungulu. That on 22nd December 2022 officers from Ruai were alerted of an ongoing theft at Woody's Bar -Ruai. They rushed to the scene, and a confrontation took place between them and 4 thugs who were packing liquor in sacks. That 2 of the thugs were shot and arrested. The other 2 disappeared. The arrested thugs were taken to Ruai police station, and they were handed over to the DCI - Ruai. They took the police to Mathare slums and to the house of one Dominic, the appellant herein. That appellant was the ringleader, together with the other 2 who had disappeared. He was arrested and taken to Makadara Law Court where there was a case for the Ruai incident.
13. PW4 stated that they were alerted of the incident and upon reviewing the CCTV footage, was able to identify the accused in this case as one of the thugs at Hideaway Bar. He subsequently filed a case in Kangundo against the accused on 6th January 2023 and charged him with robbery with violence. He identified the appellant in the dock.
14. PW5, Sergent Joseph Mutie, testified that he was based at the Forensic Imaging and Acoustic section. That on 20th September, 2022, he was given an exhibit memo by PC Victor Samani containing a flash disk with footage and directed to extract photos. That he saw footage recorded on 17th August 2022. He captured some images and printed them himself. He printed 43 photos from different videos as follows:
Photos 1-8 were from camera 7. Showed 3 men climbing the wall of the club, Hideaway club. They were using ladders.
Photos 8-13 were from camera 5. They showed the men ransacking. They could be seen taking a TV screen.
Photos 14-24 were from camera. 2 men could be seen removing the TV and taking it away with other items which could not be identified. They left through the gate. These men were in the counter area.
Photos 25-41 were from camera 4, 1 and 6. There were 2 men who could be seen searching and removing the TV and other products from the club.
Photos 42-43 were from camera 3 and they showed a vehicle moving in the opposite direction on the right side. This vehicle appeared to have been used.
15. PW5 stated that he was the one who captured the images and printed them out. That he did not interfere with anything when he printed the photos. He thus produced the photos, the memo, the Report, a certificate and Flash disc as exhibits in court.
16. PW6, CPL Paul Mwanzia Mutia, stated that he was based at Tala police station. That on 17th August 2022, at around 6 a.m., the complainant came and made a report that at 1 a.m., thieves entered his bar called Hideaway and stole some items. That he visited the scene with the OCS, Chief Inspector Adan and established the break-in. The entry was through the wall. The padlocks were broken. He was told to investigate the case. He took the CCTV footage. He arrested the watchman Muli Kasia and another person Martin Kisau. On 25th May August 2022, he forwarded the matter to the DCI Matungulu for further investigations. That the DCI released the watchmen from the issues. Later, he was told a suspect was arrested and charged. He stated that he had never seen the suspect.
17. Upon close of the prosecution case, the trial court found that a prima facie case had been established and placed the appellant and on his defence.
The Defence case
18. In his defence, the appellant gave sworn testimony as DW1. He stated that he was Dominic Mutua and lived in Huruma estate. That he worked in Marikiti market. He stated that on 22nd December 2022, he woke up to go to work as usual. That he was in Marikiti until 11 a.m., when he decided to go home through a shortcut. However, his journey was stopped by a pickup vehicle that blocked his path. The driver asked for directions to Mathare. Не asked him to enter the back of the vehicle to show them the direction and he did. That when they reached Mathare, 2 more people were arrested. The pickup was like the police land cruiser. They drove to Ngara area where 3 other people were arrested. They were taken to Ruai police station.
19. He stated that on 23rd December 2022, he brought to court and charged with robbery with violence alongside 2 other people whom he did not know. This was at Makadara Law Court. That the investigating officer requested for time to investigate and when they returned to the police station, he did not see the other people. He was returned to Makadara law court and charged with an offense which he denied. He stated that he was taken to Nairobi remand until 6th January 2023, when at 2 p.m., he was summoned to the office where he found 2 people in civilian clothes. He was told they were from Matungulu area. He was brought to Matungulu police station where he was remanded for 3 days. That on 9th January 2023, he was brought to the trial court and charged with the current offenses which he denied. Upon being cross-examined, he confirmed that he could see himself in the CCTV footage, but he was not stealing. He closed his case.
The trial court verdict
20. Upon consideration of the totality of the evidence on record, the trial court found that the prosecution properly identified the appellant as one of the thugs in the CCTV footage. The trial magistrate stated that he looked at the CCTV footage and the accused could be clearly seen in the footage time stamped 01:44:09.
21. In considering whether the offence of robbery with violence was proved, the learned magistrate found that: the prosecution established that property worth 2,420,655/= was stolen; second, that the accused was armed with dangerous weapons, and that they were 4 thugs. However, the trial court made a finding that while PW3 stated that he was hit in the face and lost a tooth, the prosecution did not produce any medical report to corroborate this. On that basis, the trial court found that the offence of robbery with violence had not been proved since, in the learned magistrate’s words, “the law dictates that all the questions must be answered in the affirmative for the accused to be found guilty.”
22. On the foregoing basis, the trial court acquitted the appellant of the offence of robbery with violence and invoking section 179 (1) of the Criminal Procedure Code, proceeded to convict him of the lesser offence of simple robbery. He was sentenced to 9 years imprisonment.
D. THE APPEAL
23. The appeal was argued by way of written submissions as filed by both parties.
(a) Appellant’s submissions
24. In his submissions, the Appellant delimited five grounds as follows: that the burden of proof was not discharged; that the chargesheet was defective in matters duplicity; that there was breach of fair trial during the hearing; that identification was neither cogent nor reliable; and that the CCTV evidence proved a different offence from the one charged.
25. On ground one, it was submitted that the burden of proof was not discharged, reliance was placed on the case of Sekitoliko vs. Uganda (1967) EA 53. It was emphasized that the prosecution bears the duty to proof all the elements of a case beyond reasonable doubt. The appellant submitted that the ingredients of robbery with violence were outlined in cases such as Joseph Kaberia Kahinga & 11 others v Attorney General [2016] eKLR. He argued that PW3’s allegation of being assaulted and losing a tooth was not proved as it lacked corroboration. That no medical evidence produced to corroborate the alleged injury. He further relied on the case of Barasa V Republic (Criminal Appeal E037 of 2021) in urging that if in the course of stealing, the offender only threatens to use violence on the victim, but does not go beyond the threat, then the offence committed is robbery, and not robbery with violence. He submitted that PW3 did not identify him.
26. It is also submitted that while PW1 was telephoned by a certain “Peter” and went to the scene, he expected to find PW3, but PW3 had vanished. He submits that the unexplained disappearance of a key witness (PW3) in the immediate aftermath of an alleged crime raises questions as to the credibility of his account. It is submitted that these questions as to the whereabouts of PW3 creates gaps in the prosecution case, hence case no proved to the required standard.
27. On ground two, that the chargesheet was defective, it is submitted that the chargesheet suffered from duplicity. He contended that charging him with robbery with violence contrary to section 295 and read with section 296(2) of the Penal Code presents an illicit fusion of two distinct offenses: the elemental act of robbery as per Section 295 and an aggravating, violent element introduced by Section 296(2). He cited the case of Joseph Njuguna Mwaura & Others v. Republic (2013) eKLR in urging his case on duplicity. That the duplicity rendered him wondering whether he was charged with simple robbery or the aggravating violent offence. He thus urge that the duplex chargesheet be expunged from the record.
28. On the third ground, that there was breach of the right fair trial during the proceeding of the matter, it is submitted that “before PW3 ascended to the stand, the accused, in a plea both rightful and resolute, sought to review PW3's statement anew, lest the shadows of ambiguity obscure the veracity of the evidence. But with a firm hand and an unyielding gavel, the court denied this plea, and in doing so, let the light of fairness flicker and dim.” That he was denied the chance to scrutinize and impeach the credibility of PW3 contrary to Article 50(2)(i) of the Constitution, which mandates that every accused person be provided with adequate time and facilities to prepare a defence. He cited the case of Thomas Patrick Gilbert Cholmondeley v. Republic [2008] eKLR, among others in urging the case that an accused person is entitled to be provided with witness statements.
29. On ground four, it was alleged that identification was neither cogent nor reliable. It was submitted that no eyewitness came forward to identify the accused at the material time of the alleged robbery. This omission, it was argued, is not a mere procedural gap but a fatal chasm and undermines the very foundation of the prosecution's case. In the absences of an eyewitness, and therefore a lack of direct identification, the prosecution’s case was rendered speculative.
30. On ground five, it was urged that CCTV evidence relied on to convict the appellant herein proved a different offence from the one charged. That the prosecution, in its bid to establish the offense of Robbery with Violence under Section 296(2) of the Penal Code, leaned heavily on CCTV footage as its primary piece of evidence. However, upon meticulous examination of the images and clips presented before the trial court, an inescapable conclusion emerges-the events captured on CCTV, at best, depict an act of burglary, not robbery, let alone robbery with violence. That review of the photos does not show PW3 being assaulted, but they just show property being unlawfully taken from a place-not from a person. He thus urged that the prosecution case was built on a mischaracterization. That it lacked the crucial element of violence against a person, rendering the charge of Robbery with Violence untenable. At best, what was proved was burglary under Section 304 of the Penal Code, not the capital offense the prosecution so zealously pursued.
31. On this basis, the appellant urged that the appeal be allowed.
(b) Respondent submissions
32. The Respondent states that it concedes to the appeal on grounds one and three, to wit: the prosecution's failure to prove to the required standard the offence of robbery contrary to section 296(1) of the Penal Code and lack of positive identification of the Appellant, respectively. The respondent submitted that in convicting the Appellant, the trial court heavily relied on an alleged CCTV footage which was never played in court during the hearing to allow the accused person an opportunity to test its veracity. That the said footage formed the crust of the still photos produced by PW5, Sgt. Joseph Mutie. It was therefore imperative for the footage to be played in court and produced in compliance with section 106B, of the Evidence Act, it being electronic evidence, preferably before PW5 testified. That still pictures alone were insufficient in the circumstances, considering that they were merely by-product of the CCTV footage.
33. The respondent further submitted that none of its witnesses identified the accused person in any of the footage. Despite the appellant’s admission, the burden of proof never shifted to him. While PW4 stated that he reviewed the footage leading to the arrest of the appellant, this was done prior to the institution of charges and not during the hearing of the case in court. The respondent emphasized that “failure to play and produce the footage in court in compliance with section 106B, Cap. 80 effectively precluded the court from relying on the footage and holding the same as a basis for positive identification of the accused person”.
34. Additionally, the respondent questioned the footage viewed by the trial magistrate submitting that the court proceeded to view footage presumably contained in the flash disk (PExh.5) alone. As such, there was no certainty that it was the same footage earlier reviewed. Moreover, PExh.5 was irregularly produced, and the accused person was not accorded an opportunity to view it before court or to cross-examine on it.34. The Respondent also argued that the dock identification of the accused person by PW3 was also flawed as he was unable to identify him positively. The footage having been produced unprocedurally cannot be used to fill up the gaps in the prosecution's case. It was not in the place of the court to independently view the footage and conclude that one of the persons therein was the Accused person. Such evidence should have come from the prosecution's witnesses. The absence of positive and proper identification of the accused person leads to the inescapable conclusion that the prosecution failed to prove the case as charged or even as convicted.
35. Notwithstanding, the above concession, the respondent submitted that the trial court erred in dismissing the charge of robbery with violence on the basis that all the ingredients of the offence needed to be satisfied for a conviction. It cited several caselaw such as: Yosiah Musungu v. R [2020] eKLR KEHC 4072 (KLR), Shadrack Karanja vs. Republic Criminal Appeal 119 of 2005; [2005] eKLR, Mohamed Ali vs. Republic [2013] eKLR, and Johana Ndungu vs. Republic [1996] eKLR, to argue that the three ingredients of robbery with violence need not all be proved. It is sufficient to establish a single ingredient for the offence of robbery with violence to be proved.
36. Ultimately, however, the Respondent conceded that even the conviction of the Appellant for simple robbery was unsafe given the circumstances of the case.
E. ANALYSIS AND DETERMINATION
37. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R [1957] EA 336; Ruwalla v R [1957] EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR where the Court of Appeal held that:
“the duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellate court may depending on the facts and circumstances of the case, come to the same conclusion as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.’’
38. Cognizant of the above legal position, there is a matter that needs to be disposed off in limine. The respondent has conceded to the appeal as filed urging that the evidence was insufficient and that some of the evidence was “irregularly” admitted and considered by the trial court. Notably, most of the submissions made by the respondent in support of its concession fall outside the scope of the appellant’s appeal. This broad concession and support of the appeal before this Court cannot go unnoticed. The question that arises is what is the role of the court where an appeal is conceded.
39. Outrightly, I underscore that on appeal, the appellate court is called upon to re-examine the decision (judgment and/or ruling) of a competent court. Unless and until such a decision is reviewed and set aside, it ordinarily retains the full force of law. The legality of the trial court’s decision imposes a duty on the appellate court to clearly set out sufficient reasons why it considers the trial court to have erred before setting it aside. A decision of the trial court cannot be overturned by an appeal court on whim or without due process. Parties cannot collude and/or even by consent, set aside a judgment of a competent court. It is on this basis that a concession to an appeal by the respondent/prosecution does not automatically lead to the appeal being allowed. In GODFREY NGOTHO MUTISO v REPUBLIC [2010] KECA 487 (KLR), the Court of Appeal stated that:
“ For our part, we think the Attorney General is at liberty to exercise his right to be heard or not to be heard as counsel before any court. It is also within his province to concede the appeal before us if he is so persuaded. Such concession will be taken into account, but that will not preclude the court from considering the matter on merits and on the material placed before it.”(Emphasis added)
40. Similarly, in Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR, it was succinctly stated that:
“It is trite that the appellate court in a criminal appeal is still required to consider the merits of an appeal even where the Respondent concedes to the appeal. This is the position that was stated in the case of Odhiambo vs. Republic (2008) KLR 565, where it was held that: -
“The court is not under any obligation to allow an appeal simply because the state is not opposed to the appeal. The court has a duty to ensure it subjects the entire evidence tendered before the trial court to a clear and fresh scrutiny and re-assess it and reach its own determination based on evidence.”
41. It therefore follows that the respondent’s concession in this matter does not preclude this Court from exercising its mandate as stated above in David Njuguna Wairimu v. Republic Supra.
42. Upon considering the petition of appeal and the parties’ submissions, the single issue that emerges is: whether the trial court erred in convicting the appellant for the offence of simple robbery.
43. The prosecution evidence, as set out above, confirmed that PW2 was the proprietor of Hideaway Bar. That establishment was broken into by at least four (4) thugs and several items stolen as outlined in the chargesheet. The fact of theft as stated by the prosecution witnesses was never rebutted. The number of thugs as evident from the CCTV footage and photos presented in court was four. These thugs were armed with dangerous weapons. These facts are not disputed in this appeal. From the photographs presented in court, the appellant herein was identified as one of the thugs. The trial court, however acquitted the appellant but convicted him of simple robbery. The appellant now challenges that conviction on the main ground that he was not identified.
44. Before delving into the main issue, of whether the appellant’s conviction was safe, there are a few tangential matters raised by the appellant that require resolution. First, he alleged that the chargesheet was defective for citing section 295 and 296(2) of the Penal Code. The respondent did not respond to this allegation. I find that this issue has already been settled by the courts. It is trite that not all defects in a charge sheet are fatal to the prosecution’s case. A defect must be material enough to cause prejudice to the appellant/accused.
45. Save for stating that the chargesheet was defective, the appellant has not demonstrated the prejudice suffered. While courts have found the framing of charges in the manner herein duplex, it consistently been held that such framing is not fatal to the charges. In the case of Paul Katana Njuguna v Republic [2016] eKLR, the Court of Appeal affirmed this position. I therefore find no merit in this ground of appeal and dismiss it.
46. On allegation of breach of the right to fair hearing under Article 50(2)(i) of the Constitution, the appellant contends is that he was denied the opportunity to prepare and scrutinize the evidence of PW3. It is trite that an accused person has a right to be supplied with the witness statements prior to the hearing in order to prepare adequately. While the appellant alleges that he was denied this right, I have perused the record and his allegations are misleading. The matter proceeded and on 4th July 2024 when it came up for further hearing. At the outset, the appellant stated that he was ready to proceed. When PW3 took the stand, the appellant objected claiming that he did not have PW3’s statement. The prosecution replied that it had previously supplied statements of 6 witnesses it intended to call. The appellant then stated that it required statements for 8 witnesses. The trial court ruled that he had been supplied with statements and the only issue he had raised earlier concerned exhibits. Notably, PW3 did not produce any exhibits during his testimony. Having thoroughly reviewed the record, I agree with the trial court’s finding that the appellant had been supplied with the witnesses’ statements prior to the hearing. There is no proof of violation of the right to fair trial. I dismiss this ground.
47. The next issue is a legal question. It is trite that section 296(2) of the Penal Code provides for three ingredients to be proved in a case of robbery with violence. The law is settled that these three ingredients are mutually exclusive and not inclusive. That is, proof of any one ingredient is sufficient to sustain a conviction. There is no legal requirement that all the three ingredients must be proved for a conviction to ensue. Indeed, in Ha
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A. INTRODUCTION
1. The appellant being aggrieved by the decision of the trial court that acquitted him for the offence of robbery with violence but convicted him for the offence of robbery under Section 295 as read with Section 296 (1) of the Penal Code, has lodged this appeal. He seeks that his conviction be quashed and the 9 years imprisonment sentence imposed be set aside.
2. The appeal is premised on the following grounds reproduced verbatim:
1) THAT the Learned Trial Magistrate erred in law in making a finding that an offence of robbery contrary to section 296(1) of the Penal Code had been established and proved against the appellant to the required standard in criminal law.
2) THAT the (learned) Magistrate erred in law and facts by failing to reconcile contradictory evidence on material facts thus arriving at the wrong conclusion.
3) THAT the (learned) Magistrate erred in law and facts by failing to observe that there was no positive identification.
4) THAT the (learned) Magistrate erred in law and facts when she found the appellant guilty of the offence charged when crucial witnesses on the side of the prosecution failed to avail in court to testify therefore shifting the burden of proof on the appellant.
5) THAT the (learned) Magistrate erred in fact while relying on circumstantial evidence which was not proven nor produced in court.
6) THAT the learned Magistrate analyzed the evidence in a perfunctory manner and thus failed to scrutinize as was expected of the court.
7) THAT the trial magistrate erred in law and fact when she shifted the burden of proof on appellant in dismissing his plausible defence.
8) THAT I pray to be supplied with certified copies of court records to adduce more evidence and more grounds.
9) THAT the sentence imposed on the appellant is harsh, excessive and punitive.
10) THAT I pray to be present during the hearing of this appeal.
B. BACKGROUND
3. Before the trial court, the appellant was charged with the offence of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. The particulars of the offence were that on the 17th day of August 2022, at around 01.00 a.m., at Hide Away bar within Tala Township in Matungulu Subcounty within Machakos County, jointly with others not before the court, while armed with a pistol and other crude weapons robbed Muli Kasia assorted brands of alcoholic drinks, soft drinks, cigarettes, 43 packets of Panadol extra, 3 flat scream televisions sets make Samsung 110 inches, Sonny 65 inches and vitron 32 inches, a laptop make Macbook, one amplifier make Pioneer, One equalizer and 12 channel mixer make Pioneer all valued at Kshs 2,420,655/= the property of Tobias Mutuku Mutua and immediately before the time of such robbery, threatened to use actual violence to the said Muli Kasia.
4. He pleaded not guilty and to prove its case, the prosecution called a total of six (6) witnesses.
C. BEFORE THE TRIAL COURT
The prosecution case
5. PW1, Fredrick Ngumbao Mwanthi, testified that he worked for Friendswise Security Firm where he is a supervisor and coordinator of the guards. That on 16th August 2022 at 6pm he was checking whether guards had reported to their various stations. That he checked at Hideaway bar. He checked until 3a.m when he went home to sleep. Before he could sleep, he was called by Peter, who works at a nearby house, and informed that the “soldier” at Hideaway Bar appeared bound and the bar broken into.
6. He went to the scene and found the gate open. He had a torch and went inside the bar. He noticed the big screen TV missing. He telephoned Tobias, the owner of the bar, and informed him. That the ‘solider’ was missing. He decided to look around to see anything strange, but he did not see anything. He took a motorbike to Nguluni and returned to the bar. He found the police had arrived. He stated that the soldier, Musembi, the guard assigned a facility behind Hideaway was missing. On cross-examination he stated that he had not seen the accused appellant herein.
7. PW2, Tobias Mutuku Mutua, stated that on 16th August 2022 at 7pm he closed Hideaway bar where he was working and went to Nairobi. At 7a.m, he was telephoned by the security guard and told that the bar had been broken into. He went back to Tala, passing through Tala Police Station where he was given 2 police officers to accompany him.
8. Upon arrival, he noted that the television was missing. The counter was broken into and assorted liquor stolen. A music system (amplifier, mixer, and equalizer) was stolen, a laptop, 2 more televisions (LG and Vitron) were missing. He stated that the security guard was present, but his hands had been bound with a nylon rope. The security guard told them that he was attacked by 4 people who tied him and stole from the bar. PW2 stated that an audit was done and it showed he lost property worth 2.4 million.
9. He stated that he had installed a CCTV and the police took the recordings. He identified the receipts for the stolen items. He was also shown photos that were generated from the CCTV and he stated that from the photos, 4 people can be seen accessing the facility through the wall using a ladder. That they could be seen stealing. That the images inside the bar were very clear because of the lighting. He testified that one of the photos was similar to the accused on the dock.
10. PW3, Muli Kasia stated that he was a casual laborer working at Tala Hideaway club. That on the night of 16th August 2022, going to the morning of 17th August 2022, thugs came through the wall and assaulted them and he lost a tooth. That they took liquor and disappeared leaving him on the ground. He stated that there were 4 people and one had a gun while others had pangas and other things. He stated that he identified one thug as he saw him when he was tying him up. That the electricity light was on. That the person used his hand to hit him on the mouth and he lost a tooth. The thugs then sat at a table and started taking liquor. Thereafter, they used a vehicle and left. He untied himself and called his boss to inform him of the theft. Notably, during the hearing before the trial court, the witness did not identify the accused from among the four people he was shown on the virtual screen. When asked about the accused he stated that he had never seen him.
11. PW4, No. 67694 Cpl Jackson Agai based at DCI headquarters, stated that in 2022 he was based at DCI-Matungulu-KBC Police Station. It was his testimony that on 25th August 2022, they were requested by OCS Tala, to take over this case. That two people had been arrested, Muli Kasia and Martin Kisau, and charged with the offence of breaking and stealing in MCCR E890 of 2022. That the offence took place at Hideaway Bar and the accused were watchmen of the club. He stated that upon taking over the case, they interrogated, Tobias, the owner of the bar who told them that there was CCTV cameras in the bar.
12. They took over the CCTV camera and took it to the DCI forensic laboratory for analysis. They got the footage and saved it in a flash disc. A report was prepared. He identified the report in court. He stated that meanwhile, during that period, there were many incidents of bar breaking in Matungulu. That on 22nd December 2022 officers from Ruai were alerted of an ongoing theft at Woody's Bar -Ruai. They rushed to the scene, and a confrontation took place between them and 4 thugs who were packing liquor in sacks. That 2 of the thugs were shot and arrested. The other 2 disappeared. The arrested thugs were taken to Ruai police station, and they were handed over to the DCI - Ruai. They took the police to Mathare slums and to the house of one Dominic, the appellant herein. That appellant was the ringleader, together with the other 2 who had disappeared. He was arrested and taken to Makadara Law Court where there was a case for the Ruai incident.
13. PW4 stated that they were alerted of the incident and upon reviewing the CCTV footage, was able to identify the accused in this case as one of the thugs at Hideaway Bar. He subsequently filed a case in Kangundo against the accused on 6th January 2023 and charged him with robbery with violence. He identified the appellant in the dock.
14. PW5, Sergent Joseph Mutie, testified that he was based at the Forensic Imaging and Acoustic section. That on 20th September, 2022, he was given an exhibit memo by PC Victor Samani containing a flash disk with footage and directed to extract photos. That he saw footage recorded on 17th August 2022. He captured some images and printed them himself. He printed 43 photos from different videos as follows:
Photos 1-8 were from camera 7. Showed 3 men climbing the wall of the club, Hideaway club. They were using ladders.
Photos 8-13 were from camera 5. They showed the men ransacking. They could be seen taking a TV screen.
Photos 14-24 were from camera. 2 men could be seen removing the TV and taking it away with other items which could not be identified. They left through the gate. These men were in the counter area.
Photos 25-41 were from camera 4, 1 and 6. There were 2 men who could be seen searching and removing the TV and other products from the club.
Photos 42-43 were from camera 3 and they showed a vehicle moving in the opposite direction on the right side. This vehicle appeared to have been used.
15. PW5 stated that he was the one who captured the images and printed them out. That he did not interfere with anything when he printed the photos. He thus produced the photos, the memo, the Report, a certificate and Flash disc as exhibits in court.
16. PW6, CPL Paul Mwanzia Mutia, stated that he was based at Tala police station. That on 17th August 2022, at around 6 a.m., the complainant came and made a report that at 1 a.m., thieves entered his bar called Hideaway and stole some items. That he visited the scene with the OCS, Chief Inspector Adan and established the break-in. The entry was through the wall. The padlocks were broken. He was told to investigate the case. He took the CCTV footage. He arrested the watchman Muli Kasia and another person Martin Kisau. On 25th May August 2022, he forwarded the matter to the DCI Matungulu for further investigations. That the DCI released the watchmen from the issues. Later, he was told a suspect was arrested and charged. He stated that he had never seen the suspect.
17. Upon close of the prosecution case, the trial court found that a prima facie case had been established and placed the appellant and on his defence.
The Defence case
18. In his defence, the appellant gave sworn testimony as DW1. He stated that he was Dominic Mutua and lived in Huruma estate. That he worked in Marikiti market. He stated that on 22nd December 2022, he woke up to go to work as usual. That he was in Marikiti until 11 a.m., when he decided to go home through a shortcut. However, his journey was stopped by a pickup vehicle that blocked his path. The driver asked for directions to Mathare. Не asked him to enter the back of the vehicle to show them the direction and he did. That when they reached Mathare, 2 more people were arrested. The pickup was like the police land cruiser. They drove to Ngara area where 3 other people were arrested. They were taken to Ruai police station.
19. He stated that on 23rd December 2022, he brought to court and charged with robbery with violence alongside 2 other people whom he did not know. This was at Makadara Law Court. That the investigating officer requested for time to investigate and when they returned to the police station, he did not see the other people. He was returned to Makadara law court and charged with an offense which he denied. He stated that he was taken to Nairobi remand until 6th January 2023, when at 2 p.m., he was summoned to the office where he found 2 people in civilian clothes. He was told they were from Matungulu area. He was brought to Matungulu police station where he was remanded for 3 days. That on 9th January 2023, he was brought to the trial court and charged with the current offenses which he denied. Upon being cross-examined, he confirmed that he could see himself in the CCTV footage, but he was not stealing. He closed his case.
The trial court verdict
20. Upon consideration of the totality of the evidence on record, the trial court found that the prosecution properly identified the appellant as one of the thugs in the CCTV footage. The trial magistrate stated that he looked at the CCTV footage and the accused could be clearly seen in the footage time stamped 01:44:09.
21. In considering whether the offence of robbery with violence was proved, the learned magistrate found that: the prosecution established that property worth 2,420,655/= was stolen; second, that the accused was armed with dangerous weapons, and that they were 4 thugs. However, the trial court made a finding that while PW3 stated that he was hit in the face and lost a tooth, the prosecution did not produce any medical report to corroborate this. On that basis, the trial court found that the offence of robbery with violence had not been proved since, in the learned magistrate’s words, “the law dictates that all the questions must be answered in the affirmative for the accused to be found guilty.”
22. On the foregoing basis, the trial court acquitted the appellant of the offence of robbery with violence and invoking section 179 (1) of the Criminal Procedure Code, proceeded to convict him of the lesser offence of simple robbery. He was sentenced to 9 years imprisonment.
D. THE APPEAL
23. The appeal was argued by way of written submissions as filed by both parties.
(a) Appellant’s submissions
24. In his submissions, the Appellant delimited five grounds as follows: that the burden of proof was not discharged; that the chargesheet was defective in matters duplicity; that there was breach of fair trial during the hearing; that identification was neither cogent nor reliable; and that the CCTV evidence proved a different offence from the one charged.
25. On ground one, it was submitted that the burden of proof was not discharged, reliance was placed on the case of Sekitoliko vs. Uganda (1967) EA 53. It was emphasized that the prosecution bears the duty to proof all the elements of a case beyond reasonable doubt. The appellant submitted that the ingredients of robbery with violence were outlined in cases such as Joseph Kaberia Kahinga & 11 others v Attorney General [2016] eKLR. He argued that PW3’s allegation of being assaulted and losing a tooth was not proved as it lacked corroboration. That no medical evidence produced to corroborate the alleged injury. He further relied on the case of Barasa V Republic (Criminal Appeal E037 of 2021) in urging that if in the course of stealing, the offender only threatens to use violence on the victim, but does not go beyond the threat, then the offence committed is robbery, and not robbery with violence. He submitted that PW3 did not identify him.
26. It is also submitted that while PW1 was telephoned by a certain “Peter” and went to the scene, he expected to find PW3, but PW3 had vanished. He submits that the unexplained disappearance of a key witness (PW3) in the immediate aftermath of an alleged crime raises questions as to the credibility of his account. It is submitted that these questions as to the whereabouts of PW3 creates gaps in the prosecution case, hence case no proved to the required standard.
27. On ground two, that the chargesheet was defective, it is submitted that the chargesheet suffered from duplicity. He contended that charging him with robbery with violence contrary to section 295 and read with section 296(2) of the Penal Code presents an illicit fusion of two distinct offenses: the elemental act of robbery as per Section 295 and an aggravating, violent element introduced by Section 296(2). He cited the case of Joseph Njuguna Mwaura & Others v. Republic (2013) eKLR in urging his case on duplicity. That the duplicity rendered him wondering whether he was charged with simple robbery or the aggravating violent offence. He thus urge that the duplex chargesheet be expunged from the record.
28. On the third ground, that there was breach of the right fair trial during the proceeding of the matter, it is submitted that “before PW3 ascended to the stand, the accused, in a plea both rightful and resolute, sought to review PW3's statement anew, lest the shadows of ambiguity obscure the veracity of the evidence. But with a firm hand and an unyielding gavel, the court denied this plea, and in doing so, let the light of fairness flicker and dim.” That he was denied the chance to scrutinize and impeach the credibility of PW3 contrary to Article 50(2)(i) of the Constitution, which mandates that every accused person be provided with adequate time and facilities to prepare a defence. He cited the case of Thomas Patrick Gilbert Cholmondeley v. Republic [2008] eKLR, among others in urging the case that an accused person is entitled to be provided with witness statements.
29. On ground four, it was alleged that identification was neither cogent nor reliable. It was submitted that no eyewitness came forward to identify the accused at the material time of the alleged robbery. This omission, it was argued, is not a mere procedural gap but a fatal chasm and undermines the very foundation of the prosecution's case. In the absences of an eyewitness, and therefore a lack of direct identification, the prosecution’s case was rendered speculative.
30. On ground five, it was urged that CCTV evidence relied on to convict the appellant herein proved a different offence from the one charged. That the prosecution, in its bid to establish the offense of Robbery with Violence under Section 296(2) of the Penal Code, leaned heavily on CCTV footage as its primary piece of evidence. However, upon meticulous examination of the images and clips presented before the trial court, an inescapable conclusion emerges-the events captured on CCTV, at best, depict an act of burglary, not robbery, let alone robbery with violence. That review of the photos does not show PW3 being assaulted, but they just show property being unlawfully taken from a place-not from a person. He thus urged that the prosecution case was built on a mischaracterization. That it lacked the crucial element of violence against a person, rendering the charge of Robbery with Violence untenable. At best, what was proved was burglary under Section 304 of the Penal Code, not the capital offense the prosecution so zealously pursued.
31. On this basis, the appellant urged that the appeal be allowed.
(b) Respondent submissions
32. The Respondent states that it concedes to the appeal on grounds one and three, to wit: the prosecution's failure to prove to the required standard the offence of robbery contrary to section 296(1) of the Penal Code and lack of positive identification of the Appellant, respectively. The respondent submitted that in convicting the Appellant, the trial court heavily relied on an alleged CCTV footage which was never played in court during the hearing to allow the accused person an opportunity to test its veracity. That the said footage formed the crust of the still photos produced by PW5, Sgt. Joseph Mutie. It was therefore imperative for the footage to be played in court and produced in compliance with section 106B, of the Evidence Act, it being electronic evidence, preferably before PW5 testified. That still pictures alone were insufficient in the circumstances, considering that they were merely by-product of the CCTV footage.
33. The respondent further submitted that none of its witnesses identified the accused person in any of the footage. Despite the appellant’s admission, the burden of proof never shifted to him. While PW4 stated that he reviewed the footage leading to the arrest of the appellant, this was done prior to the institution of charges and not during the hearing of the case in court. The respondent emphasized that “failure to play and produce the footage in court in compliance with section 106B, Cap. 80 effectively precluded the court from relying on the footage and holding the same as a basis for positive identification of the accused person”.
34. Additionally, the respondent questioned the footage viewed by the trial magistrate submitting that the court proceeded to view footage presumably contained in the flash disk (PExh.5) alone. As such, there was no certainty that it was the same footage earlier reviewed. Moreover, PExh.5 was irregularly produced, and the accused person was not accorded an opportunity to view it before court or to cross-examine on it.34. The Respondent also argued that the dock identification of the accused person by PW3 was also flawed as he was unable to identify him positively. The footage having been produced unprocedurally cannot be used to fill up the gaps in the prosecution's case. It was not in the place of the court to independently view the footage and conclude that one of the persons therein was the Accused person. Such evidence should have come from the prosecution's witnesses. The absence of positive and proper identification of the accused person leads to the inescapable conclusion that the prosecution failed to prove the case as charged or even as convicted.
35. Notwithstanding, the above concession, the respondent submitted that the trial court erred in dismissing the charge of robbery with violence on the basis that all the ingredients of the offence needed to be satisfied for a conviction. It cited several caselaw such as: Yosiah Musungu v. R [2020] eKLR KEHC 4072 (KLR), Shadrack Karanja vs. Republic Criminal Appeal 119 of 2005; [2005] eKLR, Mohamed Ali vs. Republic [2013] eKLR, and Johana Ndungu vs. Republic [1996] eKLR, to argue that the three ingredients of robbery with violence need not all be proved. It is sufficient to establish a single ingredient for the offence of robbery with violence to be proved.
36. Ultimately, however, the Respondent conceded that even the conviction of the Appellant for simple robbery was unsafe given the circumstances of the case.
E. ANALYSIS AND DETERMINATION
37. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R [1957] EA 336; Ruwalla v R [1957] EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR where the Court of Appeal held that:
“the duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellate court may depending on the facts and circumstances of the case, come to the same conclusion as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.’’
38. Cognizant of the above legal position, there is a matter that needs to be disposed off in limine. The respondent has conceded to the appeal as filed urging that the evidence was insufficient and that some of the evidence was “irregularly” admitted and considered by the trial court. Notably, most of the submissions made by the respondent in support of its concession fall outside the scope of the appellant’s appeal. This broad concession and support of the appeal before this Court cannot go unnoticed. The question that arises is what is the role of the court where an appeal is conceded.
39. Outrightly, I underscore that on appeal, the appellate court is called upon to re-examine the decision (judgment and/or ruling) of a competent court. Unless and until such a decision is reviewed and set aside, it ordinarily retains the full force of law. The legality of the trial court’s decision imposes a duty on the appellate court to clearly set out sufficient reasons why it considers the trial court to have erred before setting it aside. A decision of the trial court cannot be overturned by an appeal court on whim or without due process. Parties cannot collude and/or even by consent, set aside a judgment of a competent court. It is on this basis that a concession to an appeal by the respondent/prosecution does not automatically lead to the appeal being allowed. In GODFREY NGOTHO MUTISO v REPUBLIC [2010] KECA 487 (KLR), the Court of Appeal stated that:
“ For our part, we think the Attorney General is at liberty to exercise his right to be heard or not to be heard as counsel before any court. It is also within his province to concede the appeal before us if he is so persuaded. Such concession will be taken into account, but that will not preclude the court from considering the matter on merits and on the material placed before it.”(Emphasis added)
40. Similarly, in Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR, it was succinctly stated that:
“It is trite that the appellate court in a criminal appeal is still required to consider the merits of an appeal even where the Respondent concedes to the appeal. This is the position that was stated in the case of Odhiambo vs. Republic (2008) KLR 565, where it was held that: -
“The court is not under any obligation to allow an appeal simply because the state is not opposed to the appeal. The court has a duty to ensure it subjects the entire evidence tendered before the trial court to a clear and fresh scrutiny and re-assess it and reach its own determination based on evidence.”
41. It therefore follows that the respondent’s concession in this matter does not preclude this Court from exercising its mandate as stated above in David Njuguna Wairimu v. Republic Supra.
42. Upon considering the petition of appeal and the parties’ submissions, the single issue that emerges is: whether the trial court erred in convicting the appellant for the offence of simple robbery.
43. The prosecution evidence, as set out above, confirmed that PW2 was the proprietor of Hideaway Bar. That establishment was broken into by at least four (4) thugs and several items stolen as outlined in the chargesheet. The fact of theft as stated by the prosecution witnesses was never rebutted. The number of thugs as evident from the CCTV footage and photos presented in court was four. These thugs were armed with dangerous weapons. These facts are not disputed in this appeal. From the photographs presented in court, the appellant herein was identified as one of the thugs. The trial court, however acquitted the appellant but convicted him of simple robbery. The appellant now challenges that conviction on the main ground that he was not identified.
44. Before delving into the main issue, of whether the appellant’s conviction was safe, there are a few tangential matters raised by the appellant that require resolution. First, he alleged that the chargesheet was defective for citing section 295 and 296(2) of the Penal Code. The respondent did not respond to this allegation. I find that this issue has already been settled by the courts. It is trite that not all defects in a charge sheet are fatal to the prosecution’s case. A defect must be material enough to cause prejudice to the appellant/accused.
45. Save for stating that the chargesheet was defective, the appellant has not demonstrated the prejudice suffered. While courts have found the framing of charges in the manner herein duplex, it consistently been held that such framing is not fatal to the charges. In the case of Paul Katana Njuguna v Republic [2016] eKLR, the Court of Appeal affirmed this position. I therefore find no merit in this ground of appeal and dismiss it.
46. On allegation of breach of the right to fair hearing under Article 50(2)(i) of the Constitution, the appellant contends is that he was denied the opportunity to prepare and scrutinize the evidence of PW3. It is trite that an accused person has a right to be supplied with the witness statements prior to the hearing in order to prepare adequately. While the appellant alleges that he was denied this right, I have perused the record and his allegations are misleading. The matter proceeded and on 4th July 2024 when it came up for further hearing. At the outset, the appellant stated that he was ready to proceed. When PW3 took the stand, the appellant objected claiming that he did not have PW3’s statement. The prosecution replied that it had previously supplied statements of 6 witnesses it intended to call. The appellant then stated that it required statements for 8 witnesses. The trial court ruled that he had been supplied with statements and the only issue he had raised earlier concerned exhibits. Notably, PW3 did not produce any exhibits during his testimony. Having thoroughly reviewed the record, I agree with the trial court’s finding that the appellant had been supplied with the witnesses’ statements prior to the hearing. There is no proof of violation of the right to fair trial. I dismiss this ground.
47. The next issue is a legal question. It is trite that section 296(2) of the Penal Code provides for three ingredients to be proved in a case of robbery with violence. The law is settled that these three ingredients are mutually exclusive and not inclusive. That is, proof of any one ingredient is sufficient to sustain a conviction. There is no legal requirement that all the three ingredients must be proved for a conviction to ensue. Indeed, in Ha
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