REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E046 OF 2023
JAMES KARIUKI NJIRU…… …………………………..………APPELLANT
VERSUS
REPUBLIC………………………………….. …………….……RESPONDENT
(Being an appeal from the conviction and sentence delivered on 15/9/2023 and 13/10/2023 respectively by Hon. Wanjiru M.N. (SRM) in Gichugu Magistrates Court Criminal Case No. E428 of 2022)
J U D G M E N T
1. 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 (Cap. 63) Laws of Kenya that on 22/8/2022 at Karigoini village, Nyangeni sub-location in Kirinyaga East Sub-County within Kirinyaga County, with others not before court willfully and unlawfully robbed Lincoln Nyaga Ndege cash KShs 55,000/= and immediately before the time of such robbery while armed with metal rod assaulted the said Lincoln Nyaga Njiru thereby occasioning him actual bodily harm.
2. The appellant was convicted and sentenced to death by the trial court. He was aggrieved with the decision preferred this appeal through his petition dated 24/10/2023 based on the amended grounds of appeal that:
i. the learned trial magistrate erred in law and fact by failing to accord the appellant unfair (sic) trial during the hearing of the case;
ii. the learned trial magistrate erred in law and fact by failing to make consideration that there was a grudge between the appellant and PW 1;
iii. the learned trial magistrate erred in law and fact by convicting and sentencing the appellant to suffer death without considering that the incident took place in difficult circumstances at night.
iv. the learned trial magistrate erred in law and fact by failing to note that the prosecution did not prove the charge beyond a reasonable doubt.
v. the learned trial magistrate erred in law and fact by failing to consider the appellant’s plausible defence which was not challenged by the prosecution side.
3. The appeal was disposed of by way of written submissions filed by the appellant and learned counsel for the respondent.
4. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
5. The prosecution called four witnesses to support its case. PW 1, Lincoln Nyaga Nderi was the complainant. He gave evidence that on the night of 22/8/2022, he hired the appellant at Kamugunda stage to take him home on his “boda boda.” The appellant was well known to him as a neighbor and “boda boda” operator. However, along the way, the appellant, together with another person unknown to the complainant and whom the appellant had picked along the way, turned against him and they hit him with a metal rod severally and robbed him of KShs 55,000/= that was in his wallet and took off leaving him on the road. PW 2, Moses Muthoni Muriithi was a clinical officer working at Kiamutugu health centre. He attended to the complainant on 23/8/2022 after the incident and confirmed in his evidence that the complainant had been injured less than 12 hours before. PW 3, Richard Njagi Muriithi also a boda boda operator saw the appellant and the complainant, both well known to him, together coming out of club Makutano at Kiamutugu on the material night at around 10.00 p.m. PW 2 greeted the complainant who was his customer. the complainant then boarded the appellant’s motorcycle and another person also boarded it behind him and they left. The following day, he met the complainant who told him that he had been robbed the previous evening. He had a carrier bag with a blood-stained shirt inside. PW 4, PC Solomon Onyango conducted investigations in the matter, had the appellant arrested and charged with the offence.
6. The appellant gave sworn evidence in defence. He did not call a witness. He denied that he committed the offence. He said that he knew the complainant. The complainant wanted to lease his coffee bushes but he declined.
7. In cross-examination, he said that he did not know where he was on 22/8/2022. He said that he has been on his farm and he was tired. He did not go to Kamugunda that day. He said he used to operate a motorcycle but it had got spoilt in June. He used to operate boda boda at Kagumoini stage. He said that PW 3 was a good friend of his and they used to be together at Kamugunda operating their boda bodas. He insisted that the complainant wanted to lease 50 stems of coffee bushes from him but he declined.
8. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt. She dismissed the appellant’s defence and convicted him accordingly.
9. I arriving at her decision, the learned trial magistrate remarked that once found to have a case to answer, an accused person is expected to offer some explanation to rebut the evidence already adduced as a court could, properly directing its mind to the law, convict. That direction was erroneous. It means that the court would readily convict an accused person if he offered no testimony in defence. The legal burden of proof in a criminal trial rests on the prosecution throughout. It has to prove its case beyond a reasonable doubt. An accused person is under no duty to offer evidence in defence to rebut the prosecution’s case or to prove his innocence. That is the essence of the right to remain silent even when the court has found that he has a case to answer. It does not mean that the court then has to automatically convict on it. It still has to holistically evaluate the evidence and determine whether it proves the charges beyond a reasonable doubt or not.
10. The trial court found the defence by the appellant not persuasive enough to displace that tendered by the prosecution to create a doubt in its mind. It found the appellant guilty of the offence and convicted him accordingly.
11. In urging the first ground of appeal that his constitutional rights to a fair trial were breached, the appellant submits that during the hearing of the case, the learned trial magistrate failed to inform him of his constitutional rights under Article 25(c) of the constitution and that he was informed of the consequences of the charges he faced. Article 25(c) protects the right to a fair trial as a fundamental right which shall not be limited. It is expounded in Article 50(2) of the Constitution and the appellant submits that he was not informed of the following rights to a fair trial:
i. the right to be presumed innocent until the contrary is proved;
ii. the right to be informed of the charge with sufficient detail to answer it; and
iii. the right to have adequate time and facilities to prepare a defence.
12. Although the appellant listed the above rights he argued several others in his submissions. He submitted that he was not represented by an advocate throughout the hearing of the case, that he had not studied law and he does not know it. He submits further that under Article 50(2)(c), it should be Article 49(1)(c), he had a right to communicate with an advocate and other persons whose assistance is necessary. This one falls under the category of rights of an arrested person. Under the same category he submits that his right under Article 49(1)(g) of the constitution, at the first court appearance, to be charged or informed of the reason for detention continuing or be released was not observed.
13. Further that his rights under articles 50(2)(g) on the right to choose and be represented by an advocate and to be informed of this right promptly as well as article 50(2)(h) on the right to have an advocate assigned to him by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly were not observed.
14. He submits that the prosecution kept amending the charge severally.
15. The appellant submits that he was young at the time only aged 23 years and that he during plea he was traumatized and confused and pleaded guilty to the charges but he did not know what happened. He pleads that he was not assisted in any way or represented by an advocate in this capital charge as provided for by law and he was eventually convicted and sentenced to death.
16. The appellant has mixed up his submissions, in one breathe submitting that the offence took place at night under difficult circumstances according to the evidence on record. He submitted that the prosecution tendered a single identifying witness, the offence took place at night and PW 1 did not tell the court the source and intensity of light he used to identify his attackers whom the complainant said saw from a distance of 40 meters which is not possible under difficult circumstances at night.
17. He submitted further that the learned trial magistrate did not warn herself of the dangers of relying on the evidence of a single identifying witness. He submits that from the evidence on record, the complainant may not have known his attackers
18. In another breathe he submits that there was a disagreement he had with the complainant who wanted the appellant to lease to him some 50 stems of coffee but the appellant declined. This means that the complainant and the appellant were well known to each other and the issue of mistaken identification would not arise.
19. The appellant submitted that the complainant was drunk that day and it is likely that the injuries he sustained were as a result of falling due to drunkenness. He denied that he saw the complainant that day, he did not know that he had KShs 55,000/= and did not know whoever robbed him and that nothing concerning the offence was recovered from him.
20. The appellant submits further that the prosecution failed to prove the elements of the offence of robbery with violence which he listed as whether the complainant positively identified the attackers, whether they were armed with dangerous weapons and whether they wounded or injured the victim. He submits that the offence was committed at night, no weapon was found at the scene or in possession of the appellant, the injuries sustained by the complainant may have been occasioned by a fall due to drunkenness, the appellant was not arrested in company with others.
21. The appellant submits that the trial court rejected his plausible defence which was not displaced by the prosecution.
22. On sentence, the appellant submits that the trial court imposed a harsh and excessive sentence of death which was declared unconstitutional by the Supreme Court.
23. He thus pleads with the court to remit the case back to the trial court for a fresh hearing.
24. Learned counsel for the respondent did not submit on the ground of failure by the trial court to observe the appellant’s right at the trial thereby denying him a fair trial.
25. The respondent submits that the prosecution evidence was consistent, uncontradicted and corroborated leaving no doubt that the appellant was the culprit. Learned counsel submits that there was evidence that the appellant was with another person and was armed with a rod during the commission of the offence. He submits that the complainant knew the appellant as his neighbour and even bought him a cup of beer that night. He submits that the complainant’s evidence that he identified the appellant was corroborated by PW 3 who was also a motor cycle rider (boda boda) saw the complainant and the other person boarding the appellant’s motor. There was light to enable him see them. He also submitted that the clinical officer PW 2 corroborated the complainant’s evidence that he had been injured some 12 hours before.
26. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellant by the trial court.
27. I have considered the grounds in support of the appeal, submissions by the appellant and the respondent and the judgment of the trial court. The issues upon which this appeal rests are 1) alleged breaches of the appellant’s rights to a fair trial. 2) whether or not there was proper identification of the appellant as the complainant’s assailant and 3) whether on the whole the offence of robbery under section 296(2) was proved against the appellant beyond a reasonable doubt.
28. Starting with the issue of breach of the appellant’s constitutional rights to a fair trial, I note that at the start of the case when the appellant was first arraigned and before taking plea, the court noted that “the accused is informed of his right to legal representation.” Although the appellant submits that he was convicted on a plea of guilty and that the charges were amended severally, that submission is not correct. The charge was never amended and it remained as filed on 25/8/2022. He had entered a plea of guilty twice but on the second occasion when the facts were red to him, he denied that he had hit the complainant and the court entered a plea of not guilty.
29. The Court of Appeal has had occasion to consider the issue of breach of an accused person’s right to a fair trial in several cases. In the case of Katana & another v Republic [2022] KECA 1160 (KLR) it said thus:
“… the record of the trial court shows that the appellants indicated they were ready to proceed with the trial, actively participated in the trial and cross-examined all the witnesses, and it is not evident that they suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated.”
30. Similarly, in the present case, the record shows that, besides being informed of his right to legal representation, at every hearing the court inquired of the appellant whether he was ready to proceed and he agreed and the proceedings went on. He participated in the proceedings by being present and listening to the witnesses testify after which he cross-examined them. There was no indication that as a youthful person or a person not learned in the law, as per his submission, he was incapacitated in conducting his defence. He took the position that he had differences with the complainant for failing to lease some coffee bushes to him. The complainant denied that claim in cross-examination.
31. Consequently, I find that the appellant was not prejudiced in any way at the trial so as to lead to a breach of his right to a fair trial.
32. On the issue of lack of identification of the appellant there is evidence from the complainant and PW 3 that the appellant was well known to the complainant as they are neighbours. This was confirmed by the appellant himself even in his cross-examination. He appeared inconsistent and self-contradicting in his admission and denial that the complainant was known to him. But on the whole, the evidence was clear that they knew each other well and they were neighbours. Secondly, they were together for a sufficiently long time that material night. The complainant met his at the stage and identified him as his neighbour and asked him to ferry him home. He carried him first from Kamugunda to Kiamutugu where the appellant dropped him first as he went to fuel his motor cycle. When he came back, the complainant bought him a drink and they sat together to drink. They had a drink together before they set off on the final leg of their journey. This evidence was supported by PW 3, Richard Njagi Muriithi who saw the two of them together at Kiamutugu that very night coming out of the club. PW 3 said that there are lights around and he was able to see the appellant and the complainant well. I am satisfied as was the trial court that there is evidence that the circumstances were conducive to a proper identification by way of recognition.
33. The evidence of PW1 was corroborated by that of PW3 that the appellant and the complainant were together that night. I am satisfied that the appellant was positively identified and that PW 1 and PW 3 had ample opportunity to observe him under sufficient light. I am therefore satisfied that the surrounding circumstances were favourable for a proper identification. This court finds that the identification by both PW 1 and PW 3 of the appellant was by way of recognition and that it was not a case of mistaken identity as alleged by the appellant.
34. I therefore find that the ground of lack of identification of the appellant has no basis and the same is dismissed.
35. It is the appellant’s contention that the offence of robbery with violence was not proved against him beyond a reasonable doubt. Why the prosecution always refers this offence of robbery as robbery with violence, I will need time to interrogate on another occasion because the offence as set out under sections 295 and 296 of the Penal Code, to me, is just one offence, robbery and violence, whether threatened or actually used must be proved under both sections. The two sections provide as follows:
“S. 295. Definition of robbery
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
S. 296. Punishment of robbery
1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
36. These two sections were explained by the Court of Appeal in the case of Johana Ndungu v Republic [1996] eKLR as follows:
“In order to appreciate properly as to what acts constitute an offence under section 296(2) one must consider the sub-section in conjunction with s.295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:
If the offender is armed with any dangerous or offensive weapon or instrument, or
If he is in company with one or more other person or persons, or
If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.
Analysing the first set of circumstances the essential ingredient, apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact is needed to be proved. Thus, if the facts show that at the time of commission of the offence of robbery as defined in S.295 of the Penal Code, the offender was armed in the manner afore-described then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him.
In the same manner in the second set of circumstances if it is shown and accepted by court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two set of circumstances.
With regard to the third set of circumstances there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that at or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.”
37. My understanding of the offence as explained in the foregoing decision, considering the words “the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2)” is that, there is only one offence here, “robbery” which is created under section 295 and where theft is accompanied with real or threatened violence. Where violence is proved to have been threatened or used under only the circumstances provided in section 295 the punishment is 14 years imprisonment as provided in section 296(1) and where the violence is threatened or used in the circumstances provided for under section 295 and in addition under 296(2) the punishment is death. The circumstances of the commission of the offence (of robbery) then dictate whether the punishment is 14 years imprisonment or death. That for me does not create two different offences, one known as robbery and another known as robbery with violence. Section 296(2) circumstances only aggravate the offence and move the punishment to death. An appropriate analogy would be with the offence of defilement under the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The offence of defilement is committed under section 8(1) SOA by proof of penetration with one’s genital organ of the genital organ of a child, a person under the age of 18 years. The age of the child which essentially is an aggravating circumstance then differentiates the punishment prescribed under sub-sections (2), (3), and (4).
38. As provided for under section 295 PC and explained in the decision above, in an offence of robbery, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2). The element of theft will be considered later in this decision.
39. It has been held that the elements of the offence under section 296(2) PC are three in number and they are to be read not conjunctively, but disjunctively. Proof of one element is sufficient to found an offence of robbery under section 296(2). (see Dima Denge Dima & Others v Republic [2013] eKLR.
40. The present case is hinged on two aspects of the offence, that the appellant was in company of another person that is, they were more than one and second that they used violence upon the complainant because they hit him with a metal rod. That the metal rod was a dangerous or offensive weapon or instrument was not captured as such in the particulars of the charge.
41. Upon analyzing the evidence, the learned trial magistrate disbelieved the story tendered by the appellant and found that the prosecution had proved its case against him beyond a reasonable doubt and convicted him accordingly. I will now consider each of the grounds advanced by the appellant for his appeal.
42. There is evidence that the appellant was in company of another person whom he picked along the way when they attacked the complainant. The evidence of the complainant on this issue is corroborated by PW 3. The complainant’s evidence of having been injured was corroborated by PW 2 Moses Muthoni Muriithi the clinical officer who examined PW 1 within 12 hours of the incident found that the complainant’s clothes were torn and blood stained. Indeed, PW 3 also said that he saw the complainant carrying a shirt that appeared torn in his bag. The clinical officer said further that the complainant had open wound on the shoulders and on the right side of the eye. He also had laceration on the upper part of the shoulder. The injuries had been inflicted in the last 12 hours and he assessed the degree as harm and produced the P3 form as an exhibit.
43. I am therefore satisfied as was the learned trial magistrate that the appellant was in company of one other person and they inflicted violence upon the complainant on the material night.
44. One issue that the trial magistrate does not seem to have given attention to is whether there was evidence that the element of theft had been proved beyond a reasonable doubt in this case. Proof of theft is key in a charge of robbery aggravated by the circumstances under which it was committed. While considering this element in the case of Samuel Kariuki Wanjiku v Republic [2019] KEHC 5343 (KLR) the High Court, considering a case almost similar to the present one paused several questions that were not answered by the prosecution in proving theft thus:
“Theft is the key aid proving ingredient in robbery cases, whether simple robbery or aggravated robbery with violence. Apart from the complainant’s statement in evidence that the assailants had stolen his salary money Ksh.5000/= - which is not clarified as being part or all of his salary - and his Nokia phone, no other evidence was adduced, as urged by the Counsel for the appellant, that he had on him the said money and mobile phone to support the charge of theft…
The prosecution was, with respect, casual despite the very serious charge of robbery with violence that the appellant faced. If theft or stealing is not proved, the offence of robbery, whether simple or robbery with violence contrary to section 296 (1) or (2) of the Penal Code, respectively, cannot be proved. I do not find that cogent evidence was produced as to the alleged fact of the complainant having had in his possession of money and mobile phone, which the complainant and his alleged colleagues could have stolen.”
45. This decision of the High Court underscores the importance of the prosecution tendering cogent evidence to prove that indeed property was stolen. A mere mention in passing that someone had money or some property and that the same was stolen in the course of an assault by an accused armed with a dangerous or offensive weapon or in company of another will not do. A case of robbery under section 296(2) is a very serious case attracting the ultimate penalty of death. Before the court convicts an accused person for the offence, it must be satisfied that there is no reasonable doubt left in the prosecution’s case that each of the ingredients of the offence has been proved.
46. This leads me to the appellant’s last ground of appeal that his defence was not given due consideration by the trial court. Although the learned trial magistrate dismissed the appellant’s defence as unworthy of belief, I do not think it was such a worthless defence. The appellant maintained throughout his defence, starting from cross-examination through his testimony in defence that the complainant had wanted to lease his coffee bushes but he had declined. Granted that the appellant was inconsistent on whether the complainant was known to him or not, the evidence was not only clear that they knew each other and they were neighbours but also that there could have been some bad blood between them. Although in his defence testimony why being cross-examined by the prosecutor the appellant answered that during his cross-examination of the complainant he had not raised the issue of him declining to lease his coffee bushes to the complainant the fact is that, he did raise it as per the proceedings of the trial court.
47. Two issues lead me to this finding. First, there was no evidence led by the complainant to explain how he had the money. The appellant specifically asked him whether he had withdrawn it but he denied. He never substantiated how he got the money. It is therefore possible that he had the money on him or that he did not.
48. This possibility could not be discounted so easily by the trial court without consideration. The circumstances were there and therefore they were worth considering. Had the learned trial magistrate considered them as such, I believe she would not have disbelieved the appellant so casually. These possibilities raise a reasonable doubt that the complainant’s money or any property for that matter was stolen by the appellant and his companion.
49. I accept that the appellant was in company of another and that the complainant was assaulted. However, the fact that he was robbed of the money and other belongings is doubtful.
50. The Court of Appeal considered a similar scenario in the case of Erick Amwata Onono v Republic [2016] KECA 137 (KLR):
“To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2) …”
In the absence of any evidence proving the element of stealing, we agree with the appellant that he could not have been convicted of robbery with violence under section 296(2) of the Penal Code.”
51. The Court of Appeal finding that the ingredient of theft had not been established in the above case, substituted the conviction under section 296(2) PC with one of assault causing actual bodily harm contrary to section 251 of the PC being a minor and cognate offence as provided for under section 179 of the Criminal Procedure Code.
52. In the present case, considering the evidence that was adduced by the prosecution, I find that the offence established for which the appellant ought to have been convicted was assault causing actual bodily harm contrary to section 251 of the Penal Code whose prescribed sentence is imprisonment for a term of five years.
53. Consequently, the conviction of the appellant for the offence of robbery under section 296(2) of the Penal Code is set aside and substituted with a conviction for assault
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IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E046 OF 2023
JAMES KARIUKI NJIRU…… …………………………..………APPELLANT
VERSUS
REPUBLIC………………………………….. …………….……RESPONDENT
(Being an appeal from the conviction and sentence delivered on 15/9/2023 and 13/10/2023 respectively by Hon. Wanjiru M.N. (SRM) in Gichugu Magistrates Court Criminal Case No. E428 of 2022)
J U D G M E N T
1. 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 (Cap. 63) Laws of Kenya that on 22/8/2022 at Karigoini village, Nyangeni sub-location in Kirinyaga East Sub-County within Kirinyaga County, with others not before court willfully and unlawfully robbed Lincoln Nyaga Ndege cash KShs 55,000/= and immediately before the time of such robbery while armed with metal rod assaulted the said Lincoln Nyaga Njiru thereby occasioning him actual bodily harm.
2. The appellant was convicted and sentenced to death by the trial court. He was aggrieved with the decision preferred this appeal through his petition dated 24/10/2023 based on the amended grounds of appeal that:
i. the learned trial magistrate erred in law and fact by failing to accord the appellant unfair (sic) trial during the hearing of the case;
ii. the learned trial magistrate erred in law and fact by failing to make consideration that there was a grudge between the appellant and PW 1;
iii. the learned trial magistrate erred in law and fact by convicting and sentencing the appellant to suffer death without considering that the incident took place in difficult circumstances at night.
iv. the learned trial magistrate erred in law and fact by failing to note that the prosecution did not prove the charge beyond a reasonable doubt.
v. the learned trial magistrate erred in law and fact by failing to consider the appellant’s plausible defence which was not challenged by the prosecution side.
3. The appeal was disposed of by way of written submissions filed by the appellant and learned counsel for the respondent.
4. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
5. The prosecution called four witnesses to support its case. PW 1, Lincoln Nyaga Nderi was the complainant. He gave evidence that on the night of 22/8/2022, he hired the appellant at Kamugunda stage to take him home on his “boda boda.” The appellant was well known to him as a neighbor and “boda boda” operator. However, along the way, the appellant, together with another person unknown to the complainant and whom the appellant had picked along the way, turned against him and they hit him with a metal rod severally and robbed him of KShs 55,000/= that was in his wallet and took off leaving him on the road. PW 2, Moses Muthoni Muriithi was a clinical officer working at Kiamutugu health centre. He attended to the complainant on 23/8/2022 after the incident and confirmed in his evidence that the complainant had been injured less than 12 hours before. PW 3, Richard Njagi Muriithi also a boda boda operator saw the appellant and the complainant, both well known to him, together coming out of club Makutano at Kiamutugu on the material night at around 10.00 p.m. PW 2 greeted the complainant who was his customer. the complainant then boarded the appellant’s motorcycle and another person also boarded it behind him and they left. The following day, he met the complainant who told him that he had been robbed the previous evening. He had a carrier bag with a blood-stained shirt inside. PW 4, PC Solomon Onyango conducted investigations in the matter, had the appellant arrested and charged with the offence.
6. The appellant gave sworn evidence in defence. He did not call a witness. He denied that he committed the offence. He said that he knew the complainant. The complainant wanted to lease his coffee bushes but he declined.
7. In cross-examination, he said that he did not know where he was on 22/8/2022. He said that he has been on his farm and he was tired. He did not go to Kamugunda that day. He said he used to operate a motorcycle but it had got spoilt in June. He used to operate boda boda at Kagumoini stage. He said that PW 3 was a good friend of his and they used to be together at Kamugunda operating their boda bodas. He insisted that the complainant wanted to lease 50 stems of coffee bushes from him but he declined.
8. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt. She dismissed the appellant’s defence and convicted him accordingly.
9. I arriving at her decision, the learned trial magistrate remarked that once found to have a case to answer, an accused person is expected to offer some explanation to rebut the evidence already adduced as a court could, properly directing its mind to the law, convict. That direction was erroneous. It means that the court would readily convict an accused person if he offered no testimony in defence. The legal burden of proof in a criminal trial rests on the prosecution throughout. It has to prove its case beyond a reasonable doubt. An accused person is under no duty to offer evidence in defence to rebut the prosecution’s case or to prove his innocence. That is the essence of the right to remain silent even when the court has found that he has a case to answer. It does not mean that the court then has to automatically convict on it. It still has to holistically evaluate the evidence and determine whether it proves the charges beyond a reasonable doubt or not.
10. The trial court found the defence by the appellant not persuasive enough to displace that tendered by the prosecution to create a doubt in its mind. It found the appellant guilty of the offence and convicted him accordingly.
11. In urging the first ground of appeal that his constitutional rights to a fair trial were breached, the appellant submits that during the hearing of the case, the learned trial magistrate failed to inform him of his constitutional rights under Article 25(c) of the constitution and that he was informed of the consequences of the charges he faced. Article 25(c) protects the right to a fair trial as a fundamental right which shall not be limited. It is expounded in Article 50(2) of the Constitution and the appellant submits that he was not informed of the following rights to a fair trial:
i. the right to be presumed innocent until the contrary is proved;
ii. the right to be informed of the charge with sufficient detail to answer it; and
iii. the right to have adequate time and facilities to prepare a defence.
12. Although the appellant listed the above rights he argued several others in his submissions. He submitted that he was not represented by an advocate throughout the hearing of the case, that he had not studied law and he does not know it. He submits further that under Article 50(2)(c), it should be Article 49(1)(c), he had a right to communicate with an advocate and other persons whose assistance is necessary. This one falls under the category of rights of an arrested person. Under the same category he submits that his right under Article 49(1)(g) of the constitution, at the first court appearance, to be charged or informed of the reason for detention continuing or be released was not observed.
13. Further that his rights under articles 50(2)(g) on the right to choose and be represented by an advocate and to be informed of this right promptly as well as article 50(2)(h) on the right to have an advocate assigned to him by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly were not observed.
14. He submits that the prosecution kept amending the charge severally.
15. The appellant submits that he was young at the time only aged 23 years and that he during plea he was traumatized and confused and pleaded guilty to the charges but he did not know what happened. He pleads that he was not assisted in any way or represented by an advocate in this capital charge as provided for by law and he was eventually convicted and sentenced to death.
16. The appellant has mixed up his submissions, in one breathe submitting that the offence took place at night under difficult circumstances according to the evidence on record. He submitted that the prosecution tendered a single identifying witness, the offence took place at night and PW 1 did not tell the court the source and intensity of light he used to identify his attackers whom the complainant said saw from a distance of 40 meters which is not possible under difficult circumstances at night.
17. He submitted further that the learned trial magistrate did not warn herself of the dangers of relying on the evidence of a single identifying witness. He submits that from the evidence on record, the complainant may not have known his attackers
18. In another breathe he submits that there was a disagreement he had with the complainant who wanted the appellant to lease to him some 50 stems of coffee but the appellant declined. This means that the complainant and the appellant were well known to each other and the issue of mistaken identification would not arise.
19. The appellant submitted that the complainant was drunk that day and it is likely that the injuries he sustained were as a result of falling due to drunkenness. He denied that he saw the complainant that day, he did not know that he had KShs 55,000/= and did not know whoever robbed him and that nothing concerning the offence was recovered from him.
20. The appellant submits further that the prosecution failed to prove the elements of the offence of robbery with violence which he listed as whether the complainant positively identified the attackers, whether they were armed with dangerous weapons and whether they wounded or injured the victim. He submits that the offence was committed at night, no weapon was found at the scene or in possession of the appellant, the injuries sustained by the complainant may have been occasioned by a fall due to drunkenness, the appellant was not arrested in company with others.
21. The appellant submits that the trial court rejected his plausible defence which was not displaced by the prosecution.
22. On sentence, the appellant submits that the trial court imposed a harsh and excessive sentence of death which was declared unconstitutional by the Supreme Court.
23. He thus pleads with the court to remit the case back to the trial court for a fresh hearing.
24. Learned counsel for the respondent did not submit on the ground of failure by the trial court to observe the appellant’s right at the trial thereby denying him a fair trial.
25. The respondent submits that the prosecution evidence was consistent, uncontradicted and corroborated leaving no doubt that the appellant was the culprit. Learned counsel submits that there was evidence that the appellant was with another person and was armed with a rod during the commission of the offence. He submits that the complainant knew the appellant as his neighbour and even bought him a cup of beer that night. He submits that the complainant’s evidence that he identified the appellant was corroborated by PW 3 who was also a motor cycle rider (boda boda) saw the complainant and the other person boarding the appellant’s motor. There was light to enable him see them. He also submitted that the clinical officer PW 2 corroborated the complainant’s evidence that he had been injured some 12 hours before.
26. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellant by the trial court.
27. I have considered the grounds in support of the appeal, submissions by the appellant and the respondent and the judgment of the trial court. The issues upon which this appeal rests are 1) alleged breaches of the appellant’s rights to a fair trial. 2) whether or not there was proper identification of the appellant as the complainant’s assailant and 3) whether on the whole the offence of robbery under section 296(2) was proved against the appellant beyond a reasonable doubt.
28. Starting with the issue of breach of the appellant’s constitutional rights to a fair trial, I note that at the start of the case when the appellant was first arraigned and before taking plea, the court noted that “the accused is informed of his right to legal representation.” Although the appellant submits that he was convicted on a plea of guilty and that the charges were amended severally, that submission is not correct. The charge was never amended and it remained as filed on 25/8/2022. He had entered a plea of guilty twice but on the second occasion when the facts were red to him, he denied that he had hit the complainant and the court entered a plea of not guilty.
29. The Court of Appeal has had occasion to consider the issue of breach of an accused person’s right to a fair trial in several cases. In the case of Katana & another v Republic [2022] KECA 1160 (KLR) it said thus:
“… the record of the trial court shows that the appellants indicated they were ready to proceed with the trial, actively participated in the trial and cross-examined all the witnesses, and it is not evident that they suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated.”
30. Similarly, in the present case, the record shows that, besides being informed of his right to legal representation, at every hearing the court inquired of the appellant whether he was ready to proceed and he agreed and the proceedings went on. He participated in the proceedings by being present and listening to the witnesses testify after which he cross-examined them. There was no indication that as a youthful person or a person not learned in the law, as per his submission, he was incapacitated in conducting his defence. He took the position that he had differences with the complainant for failing to lease some coffee bushes to him. The complainant denied that claim in cross-examination.
31. Consequently, I find that the appellant was not prejudiced in any way at the trial so as to lead to a breach of his right to a fair trial.
32. On the issue of lack of identification of the appellant there is evidence from the complainant and PW 3 that the appellant was well known to the complainant as they are neighbours. This was confirmed by the appellant himself even in his cross-examination. He appeared inconsistent and self-contradicting in his admission and denial that the complainant was known to him. But on the whole, the evidence was clear that they knew each other well and they were neighbours. Secondly, they were together for a sufficiently long time that material night. The complainant met his at the stage and identified him as his neighbour and asked him to ferry him home. He carried him first from Kamugunda to Kiamutugu where the appellant dropped him first as he went to fuel his motor cycle. When he came back, the complainant bought him a drink and they sat together to drink. They had a drink together before they set off on the final leg of their journey. This evidence was supported by PW 3, Richard Njagi Muriithi who saw the two of them together at Kiamutugu that very night coming out of the club. PW 3 said that there are lights around and he was able to see the appellant and the complainant well. I am satisfied as was the trial court that there is evidence that the circumstances were conducive to a proper identification by way of recognition.
33. The evidence of PW1 was corroborated by that of PW3 that the appellant and the complainant were together that night. I am satisfied that the appellant was positively identified and that PW 1 and PW 3 had ample opportunity to observe him under sufficient light. I am therefore satisfied that the surrounding circumstances were favourable for a proper identification. This court finds that the identification by both PW 1 and PW 3 of the appellant was by way of recognition and that it was not a case of mistaken identity as alleged by the appellant.
34. I therefore find that the ground of lack of identification of the appellant has no basis and the same is dismissed.
35. It is the appellant’s contention that the offence of robbery with violence was not proved against him beyond a reasonable doubt. Why the prosecution always refers this offence of robbery as robbery with violence, I will need time to interrogate on another occasion because the offence as set out under sections 295 and 296 of the Penal Code, to me, is just one offence, robbery and violence, whether threatened or actually used must be proved under both sections. The two sections provide as follows:
“S. 295. Definition of robbery
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
S. 296. Punishment of robbery
1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
36. These two sections were explained by the Court of Appeal in the case of Johana Ndungu v Republic [1996] eKLR as follows:
“In order to appreciate properly as to what acts constitute an offence under section 296(2) one must consider the sub-section in conjunction with s.295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:
If the offender is armed with any dangerous or offensive weapon or instrument, or
If he is in company with one or more other person or persons, or
If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.
Analysing the first set of circumstances the essential ingredient, apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact is needed to be proved. Thus, if the facts show that at the time of commission of the offence of robbery as defined in S.295 of the Penal Code, the offender was armed in the manner afore-described then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him.
In the same manner in the second set of circumstances if it is shown and accepted by court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two set of circumstances.
With regard to the third set of circumstances there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that at or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.”
37. My understanding of the offence as explained in the foregoing decision, considering the words “the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2)” is that, there is only one offence here, “robbery” which is created under section 295 and where theft is accompanied with real or threatened violence. Where violence is proved to have been threatened or used under only the circumstances provided in section 295 the punishment is 14 years imprisonment as provided in section 296(1) and where the violence is threatened or used in the circumstances provided for under section 295 and in addition under 296(2) the punishment is death. The circumstances of the commission of the offence (of robbery) then dictate whether the punishment is 14 years imprisonment or death. That for me does not create two different offences, one known as robbery and another known as robbery with violence. Section 296(2) circumstances only aggravate the offence and move the punishment to death. An appropriate analogy would be with the offence of defilement under the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The offence of defilement is committed under section 8(1) SOA by proof of penetration with one’s genital organ of the genital organ of a child, a person under the age of 18 years. The age of the child which essentially is an aggravating circumstance then differentiates the punishment prescribed under sub-sections (2), (3), and (4).
38. As provided for under section 295 PC and explained in the decision above, in an offence of robbery, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2). The element of theft will be considered later in this decision.
39. It has been held that the elements of the offence under section 296(2) PC are three in number and they are to be read not conjunctively, but disjunctively. Proof of one element is sufficient to found an offence of robbery under section 296(2). (see Dima Denge Dima & Others v Republic [2013] eKLR.
40. The present case is hinged on two aspects of the offence, that the appellant was in company of another person that is, they were more than one and second that they used violence upon the complainant because they hit him with a metal rod. That the metal rod was a dangerous or offensive weapon or instrument was not captured as such in the particulars of the charge.
41. Upon analyzing the evidence, the learned trial magistrate disbelieved the story tendered by the appellant and found that the prosecution had proved its case against him beyond a reasonable doubt and convicted him accordingly. I will now consider each of the grounds advanced by the appellant for his appeal.
42. There is evidence that the appellant was in company of another person whom he picked along the way when they attacked the complainant. The evidence of the complainant on this issue is corroborated by PW 3. The complainant’s evidence of having been injured was corroborated by PW 2 Moses Muthoni Muriithi the clinical officer who examined PW 1 within 12 hours of the incident found that the complainant’s clothes were torn and blood stained. Indeed, PW 3 also said that he saw the complainant carrying a shirt that appeared torn in his bag. The clinical officer said further that the complainant had open wound on the shoulders and on the right side of the eye. He also had laceration on the upper part of the shoulder. The injuries had been inflicted in the last 12 hours and he assessed the degree as harm and produced the P3 form as an exhibit.
43. I am therefore satisfied as was the learned trial magistrate that the appellant was in company of one other person and they inflicted violence upon the complainant on the material night.
44. One issue that the trial magistrate does not seem to have given attention to is whether there was evidence that the element of theft had been proved beyond a reasonable doubt in this case. Proof of theft is key in a charge of robbery aggravated by the circumstances under which it was committed. While considering this element in the case of Samuel Kariuki Wanjiku v Republic [2019] KEHC 5343 (KLR) the High Court, considering a case almost similar to the present one paused several questions that were not answered by the prosecution in proving theft thus:
“Theft is the key aid proving ingredient in robbery cases, whether simple robbery or aggravated robbery with violence. Apart from the complainant’s statement in evidence that the assailants had stolen his salary money Ksh.5000/= - which is not clarified as being part or all of his salary - and his Nokia phone, no other evidence was adduced, as urged by the Counsel for the appellant, that he had on him the said money and mobile phone to support the charge of theft…
The prosecution was, with respect, casual despite the very serious charge of robbery with violence that the appellant faced. If theft or stealing is not proved, the offence of robbery, whether simple or robbery with violence contrary to section 296 (1) or (2) of the Penal Code, respectively, cannot be proved. I do not find that cogent evidence was produced as to the alleged fact of the complainant having had in his possession of money and mobile phone, which the complainant and his alleged colleagues could have stolen.”
45. This decision of the High Court underscores the importance of the prosecution tendering cogent evidence to prove that indeed property was stolen. A mere mention in passing that someone had money or some property and that the same was stolen in the course of an assault by an accused armed with a dangerous or offensive weapon or in company of another will not do. A case of robbery under section 296(2) is a very serious case attracting the ultimate penalty of death. Before the court convicts an accused person for the offence, it must be satisfied that there is no reasonable doubt left in the prosecution’s case that each of the ingredients of the offence has been proved.
46. This leads me to the appellant’s last ground of appeal that his defence was not given due consideration by the trial court. Although the learned trial magistrate dismissed the appellant’s defence as unworthy of belief, I do not think it was such a worthless defence. The appellant maintained throughout his defence, starting from cross-examination through his testimony in defence that the complainant had wanted to lease his coffee bushes but he had declined. Granted that the appellant was inconsistent on whether the complainant was known to him or not, the evidence was not only clear that they knew each other and they were neighbours but also that there could have been some bad blood between them. Although in his defence testimony why being cross-examined by the prosecutor the appellant answered that during his cross-examination of the complainant he had not raised the issue of him declining to lease his coffee bushes to the complainant the fact is that, he did raise it as per the proceedings of the trial court.
47. Two issues lead me to this finding. First, there was no evidence led by the complainant to explain how he had the money. The appellant specifically asked him whether he had withdrawn it but he denied. He never substantiated how he got the money. It is therefore possible that he had the money on him or that he did not.
48. This possibility could not be discounted so easily by the trial court without consideration. The circumstances were there and therefore they were worth considering. Had the learned trial magistrate considered them as such, I believe she would not have disbelieved the appellant so casually. These possibilities raise a reasonable doubt that the complainant’s money or any property for that matter was stolen by the appellant and his companion.
49. I accept that the appellant was in company of another and that the complainant was assaulted. However, the fact that he was robbed of the money and other belongings is doubtful.
50. The Court of Appeal considered a similar scenario in the case of Erick Amwata Onono v Republic [2016] KECA 137 (KLR):
“To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2) …”
In the absence of any evidence proving the element of stealing, we agree with the appellant that he could not have been convicted of robbery with violence under section 296(2) of the Penal Code.”
51. The Court of Appeal finding that the ingredient of theft had not been established in the above case, substituted the conviction under section 296(2) PC with one of assault causing actual bodily harm contrary to section 251 of the PC being a minor and cognate offence as provided for under section 179 of the Criminal Procedure Code.
52. In the present case, considering the evidence that was adduced by the prosecution, I find that the offence established for which the appellant ought to have been convicted was assault causing actual bodily harm contrary to section 251 of the Penal Code whose prescribed sentence is imprisonment for a term of five years.
53. Consequently, the conviction of the appellant for the offence of robbery under section 296(2) of the Penal Code is set aside and substituted with a conviction for assault
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