1. The Appellant was charged with the offence of attempted robbery contrary to Section 297(2) of the Penal Code. Particulars stated that on the 14th day of January 2021 at 11:00 am at Embassy trading center within Nyeri County jointly with another not before court while armed with a pistol attempted to steal from Catherine Nyaguthii Maina and immediately before the time of such theft threatened to use actual violence against Catherine Nyaguthii Maina.
2. The Accused was found guilty and sentenced to serve 15 years imprisonment to which being dissatisfied with the judgment, lodged the instant appeal.
3. The Appellant was convicted and sentenced to death. Being aggrieved by both the conviction and sentence meted out against him by the trial court, he filed the instant appeal on grounds that: -
a) That the trial magistrate erred both on law and fact when failing to consider that there was insufficient evidence which was fully contracted and un corroborated evidence tendered by prosecution
b) That the trial magistrate erred in law and facts by relying on the exhibits which were never brought before the court as exhibits i.e. camera alleged firearm which were never the recovered in my position
c) That the trial magistrate erred in law and facts when she failed to consider that the complainant did not give the description of her attackers in her first report to police and the identification was dock identification which was not supposed to relied on.
d) That the trial magistrate erred in law and facts when she failed to consider that the crucial witness were never called upon to testify i.e the eyewitness who were said to be at the scene of the crime since it was alleged to happen at daytime.
e) That the trial magistrate erred both maters of law and facts when she failed to consider that the complainant gives the number of two suspects but only arrested the appellant and the prosecution did not prove the appellant guilty to the offence as charged.
f) THAT the trial magistrate erred in both matters law and fact that the motor cycle KMET 6934 was mine [his] and hired it out to someone
g) That the trial magistrate erred both maters of law and facts when she rejected his defense
h) That he prays that he be present at the hearing of the appeal
i) Spent…
4. As the appellate court, we must evaluate the evidence afresh as was held in the celebrated cases of the Court of Appeal in Kiilu & Another vs. Republic [2005] 1KLR 174 and Okeno vs. Republic [1972] EA 3.
THE EVIDENCE
5. PW1 Catherine Nyaguthii stated that on 14/1/2021 at 8pm she was at Embassy at Kimathi University at her shop when a motorbike with two pillion passengers stopped outside her shop which was next to the road and then proceed. She stated that the bike was red. That after finishing with a customer she got out of her shop and sat outside her shop and the same motorbike returned still with two pillion passengers and noted its plate number as KMET 693Y.(The motor bike is presented as MFI-1). One of the passengers had a blue jacket, white shoes and a black and yellow cap. She stated that this was the man who came to the shop and the cap he wore had the inscription ‘Billabong or BingBong’. She stated that she did not note the other man. She stated that the aforementioned man in blue jacket was the rider. She stated that it was him who pointed a gun at her. (Black yellow Cap produced in court MFI-2). She stated that the man stated that he wanted to withdraw 15k and pointed a small pistol at her, then she went quiet to which she screamed loudly and that he ran back to the motorcycle and that it was then she noted the registration number. She then stated that on advisement she reported the case and was given an OB number 5/15/1/2021. She then stated while on a visit at Ruringu on 18/1/2021 she passed by Jacaranda bar where she noticed the man who wielded a pistol at her lying on the motorcycle and had the same cap on and she noticed that he had a mark on the bridge of his nose and he asked her if she wanted to go somewhere and she kept still and noted the motorcycle registration number and recalled the events. She then called the police about her discovery who then came four in number and pointed at them the suspect and arrested him. She stated that the accused was the person who pointed a gun at her.
6. Under cross-examination she stated that the accused wore the same black and yellow billabong cap and the motorcycle used by the 14.1.2021. She stated that the police did not tell her to frame the accused. She stated that she remembered him from 14.01.2021 and noted the registration number. She stated that she noted him from his mark on the nose bridge, the black and yellow cap and the registration of the motorcycle. She stated that she did not know the police officers nor did she note other writings on the motorcycle. She stated that the accused asked her if she wanted a ride outside jacaranda bar as she passed by. She stated that the he was outside the bar and lying on the motorbike and that she did not see his wife and that she described him to the police when they came. She stated that her customers had left by the time she was screamed. She stated that she told her customers he had a gun. She stated that the accused left in a leisurely manner since he had the pistol.
7. In reexamination she stated that she does not know where the pistol is and that he left with it the same way he came with it. She stated that she does not know where he lives and that she did not take photos because she was scared. She stated that she only took down the registration number and told the police officers of the registration number and the description of the motorcycle on 15/1/2021.
8. PW2 No.89539 PC Oscar Omondi stated that on 18/1/2021he was called by IP Gitonga in charge of crime who told him that a suspect of attempted robbery was seen at jacaranda bar in Ruringu and after communicating with the witness he took with him PC Lenaiyan, Oloo to meet the witness. That after meeting they were shown the suspect outside the bar who had parked a motorbike registration number KMET 693Y which he had sat on. He stated that the complainant said the accused had worn a black and yellow cap and that he committed the offence wearing that cap and proceeded to arrest him despite the fact that he tried to take off in the cause of arrest. He stated that he prepared an inventory from the recovery at Jacaranda bar to wit the motor cycle KMET 693Y red in colour, a black and yellow cap written billabong and that the accused signed the inventory together with the PCs Oloo, Lenaiyan and himself.
9. Under cross examination he stated that he arrested the accused in respect to the case and that he attempted to escape arrest. He stated that he once arrested the accused for a stolen phone where the complainant withdrew and that he is a well-known suspect in the area. He stated that he never threatened to kill him with a gun and that he has no grudge against him
10. In reexamination he stated that he works within the law and that he did not threaten the accused. He stated that he recovered the cap and the motorbike. He stated that the in charge crime officer requested them to arrest the accused.
11. PW3 SAMUEL LENAIYAN PC NO. 107966 stated that he was requested by IP Gitonga officer in charge of crime to assist officers at Kabiruini in requesting for assistance in arresting a suspect in a robbery with violence case. That after talking with the complainant she showed them the accused sitting on a motorcycle KMET 693Y wearing a yellow cap written billabong and after introducing themselves the arrested him though he tried to escape. He stated that they took inventory and that the accused was signed it voluntary and further they arrested a woman claiming to be the accused’s wife who obstructed arrest and another.
12. In cross examination he stated they only effected arrest as per the description by the complainant and that when they searched his house they did not find a pistol.
13. In reexamination he stated that he did not take photos of the accused and only arrested and neither did he take KShs.1000 nor a Samsung phone from the accused and that he conducted a search on the person of the accused as per training and items are place in inventory.
14. PW4 Sergeant Johnson Musyoka stated that on 15/1/2021 he got a report from the complainant about attempted robbery with violence that happened on 14/1/2021 by two people astride a red motorcycle KMET 693Y and noted it down in the OB. He restated the description given by the complainant of the accused’s manner of dressing. He stated the complainant knew everyone who had operated in her area. He then stated that he went to the scene and noted that there were CCTV camera’s there and watched the footage and it described exactly as she stated with the passenger going to the shop and later after he left a crowd came there. He stated that the CCTV did not show the registration number of the motorcycle nor could it show the faces of the two suspects and that he could not rely on it. That it could not show the pistol he used to draw at her. He stated that on 18/1/2021 he was called by the complainant informing him that she has seen the accused man on the motorcycle to which he called his colleagues IP Gitonga a to assist as Kabiruini where the matter was reported is far from where he was located. And he was arrested. He produced black and yellow Cap, motor cycle shine ray KMET 693YY and inventory list.
15. In cross examination he stated that t he was not there during the arrest and that he used the CCTV footage to confirm the events but did not rely on it as it did not show his faces nor motorcycle registration number. He stated that on the day of his arrest he only had the hat on and not the jacket or open shoes. He stated that the complainant identified the motorcycle and the accused in the day of the arrest.
16. DW1, John Gathungu Wambugu in examination in chief stated that he is a bodaboda operator and that on 14/1/2021 he ferried a friend to Gitathini stage and thereafter had a severe stomach ache and had it treated and stayed at home and left his bike with his brother at the stage. He stated that at around 4pm his brother called him and instructed him to leave his motorcycle at the petrol station. He then stated that later his aunt called him informing him that her child had died and needed to be taken to PGH hospital and organized for her transport by other means. On 18/1/2021 he stated that there was the burial of the [guy] that passed on and thereafter he went to Ruringu bar to relax and drink socially when he was arrested. He stated that PC Oscar interviewed him the next day and asked him for a bribe of KShs 3000 to make the case go away.
17. The Appellant put in his written submissions on 30th May 2022. The Respondent put in its written submissions on 5th August 2022.
ANALYSIS AND DETERMINATION
18. Having discharged the duty to reevaluate the lower courts record, written submissions and authorities relied upon by both parties. The ultimate question is: -
a. Whether the prosecution proved its case beyond reasonable doubt.; and
b. Whether the 15 year sentence is illegal or an appropriate sentence.
19. The appellant was charged with the offence of attempted robbery with violence contrary to Section 297(2) of the Penal Code. The section provides as follows;
“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
20. Section 297(1) of the Penal Code provides what constitutes this offence as:-
i. Assault and;
ii. Intention to steal and;
iii. Use or threat to use violence at or immediately before or immediately after the time of the assault in order to
1. obtain the thing intended to be stolen or;
2. to prevent or overcome resistance to its being stolen.
21. To constitute an Attempted Robbery, the Appellant must be shown to have assaulted the Complainant and specifically with the intention to steal something and that at or immediately before or immediately after the said assault he used or threatened to use violence in order either to obtain the thing intended to be stolen, that the aggressor is armed with a dangerous instrument/weapon, or is in the company with one or more persons and if at or immediately thereafter the time of the assault he uses any other personal violence to any person shall be sentenced to death.
22. The evidence before the court by the Complainant, PW1 was that a man wearing a black and yellow hat , a blue jacket and open shoes alighted from a motorcycle and approached her shop and drew out a pistol and demanded KShs.15000/- to which she resorted to screaming and that on doing this he returned to the awaiting motorcycle. This happened at around 8pm. That the assailants left without injuring her or stealing anything from her. That she was able to take down the registration number of the vehicle.
23. The record bears no report of assault to the Complainant. The record only reflects that a man came to her shop and asked to withdraw KShs.15,000/- after pointing a gun at her and that they took off when she raised an alarm.PW1 testified that the happening of that night happened at night. The Court of Appeal in the case of Joseph Muchangi Nyaga & another v Republic [2013] eKLR stated that before acting on evidence of visual recognition, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently. The complainant is the only in this case who would have seen the assailant. From the record, the trial court nor the prosecution make inquiries into the presence of light and its intensity, nor its location of the source of the light in relation to the accused and the time taken by the complainant to take note of the assailant. I further note that the physical features of the assailant were noted 4 days after the incident on 18/1/2021 to wit the mark on the bridge of his nose. Nevertheless when considering the Court of Appeal in the case of Oluoch –Vs – Republic [1985] KLR where it considered the ingredients for the offence of robbery with violence and according to the case of Dima Denge Dima & Others vs Republic,Criminal Appeal No. 300 of 2007 the courts arrived at the finding that the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence. By import, the same is for the ingredients of attempted robbery with violence. Further the penal code’s use of the word ‘or’ in Section 297(1) and (2) indicates that the ingredients are disjunctive.
24. As aforementioned Assault has not been proven in law. The intention to steal can be inferred from the wielded of the gun which thPW4 stated that it could not be confirmed from the CCTV footage that he saw and which he further did not rely on as the images were obscurant to the degree that he could make out the cases of the assailant and the pillion passenger on the motor cycle. Likewise the use of violence or the threat to use violence can only be inferred from the language used, weapons presented by the assailant in his bid to rob the complainant. It was the testimony of the complainant who stated, ‘ ‘ The Man with the gun said that he wants to withdraw’’ it was the sole witness of the complainant that the accused had a small pistol which he pointed at her. The evidence by PW4 confirmed that he could make out if indeed the assailant wielded a weapon at the complainant. On this score, I am hard pressed to find that the use or threat to use violence was used in order to obtain the thing intended.
25. Under Section 297(2) the disjunctive ingredients are:
i. If he was armed with a dangerous or offensive weapon or instrument
ii. Is in the company with one or more persons
iii. If at or immediately before or immediately after the time of the assault, he wounds, beats, strikes or uses any other personal violence to any pers
26. The record bears no evidence that the Accused at or immediately before or immediately after the time of the assault, he wounded, beat, struck or used any other personal violence to any person as per Section 297(2) of the Penal code under which he was charged under and subsequently convicted on. However there was more than one attacker and so that suffices.
27. That leaves the issue of identification. The victim testified that she was able to see the culprits very well and the record shows that the trial court believed based on the assumption that since the shop was opened, there must have been rights. This may be a reasonable assumption but we must bear in mind that a conviction especially of such a serious offence must be based on solid evidence and the court must be very very cautious.
28. What is puzzling is the capturing of the registration number by the complainant at night and her exact position when she did this . It cannot be gain said that visual identification at night must be treated very cautiously. The Court of Appeal in the case of Joseph Muchangi Nyaga & another v Republic [2013] eKLR stated that before acting on evidence of visual recognition, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently.
29. In the particular case, one must ask ,if the complainant was in the shop, how was she able to see and capture the details of the motor cycle? How far was it ? What kind of light was outside the shop as definitely the motor cycle was not parked in the shop? Did the light inside the shop capture the space outside as well? All these questions were not properly answered.
30. From the foregoing I find that the Appeal by the Accused person has merit and succeeds. The conviction was not safe and it is overturned and the sentence set aside
The Appellant should be released from custody forthwith unless if otherwise lawfully held.
31. It is so ordered.
DATED SIGNED AND DELIVERED THIS ____31st___________ day of July 2024.
Wendy. K. Micheni
Judge
Delivered in the presence of
The Appellant
MS Maina For the Respondent
Bebora court Assistant