(Being an appeal from the conviction and sentence delivered on 9th September 2023 and 18th October respectively by Hon. Alex Ithuku. (CM) in Kerugoya Magistrates Court Criminal Case No. E300 of 2022)
Introduction
1. The appellant was charged before the trial court with the offence of robbery with violence contrary to section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on 26th June 2022 at Kimuri village in Kirinyaga Central Sub-County within Kirinyaga County, jointly with others not before court robbed Nick Muriithi Nyaguthii of cash KShs 1,700/= and two mobile phones make Redmi 9A Plus valued at KShs 23,700/= and at the time of such robbery wounded the said Nick Muriithi Nyaguthiii by way of foot kicking and fist punching. The appellant was found guilty, convicted and sentenced to death by the trial court.
Grounds of appeal
2. The appellant was aggrieved by the decision and preferred this appeal through his petition filed on 24th October 2023 based on the grounds that:
i. the learned trial magistrate erred in law and fact by failing to consider that the evidence produced in court was not credible.
ii. the learned trial magistrate erred in law and fact by failing to consider that the investigations done were shoddy and malicious since the appellant had housed the complainant for some period for he had nowhere to reside.
iii. the learned trial magistrate erred in law and fact by not considering the circumstances of the case, that is, the appellant had a house party and had invited many other friends.
iv. the learned trial magistrate erred in law and fact by failing to give a fair hearing to establish that the evidence that was adduced before the court was uncollaborative (sic) and full of malice.
v. the learned trial magistrate failed to consider that the evidence adduced by the prosecution was not proved beyond reasonable doubt.
vi. the learned trial magistrate erred in law and fact by failing to consider the relationship between the two families and effort made to have the matter settled outside court, that is, the complainant’s parents bonded the appellant out during the trial of the case.
vii. the learned trial magistrate erred in law and fact by failing to put the appellant on defense to prove his innocence.
viii. the learned trial magistrate erred in law and fact by severely sentencing the appellant and failing to consider him being a first offender.
ix. the learned trial magistrate erred in law and fact by failing to allow the appellant to mitigate his case.
3. The appellant therefore prays that the appeal be allowed, the conviction quashed and the sentence set aside and he be set at liberty.
Submissions
4. The appeal was disposed of by way of written submissions filed by the appellant in person and by learned counsel for the respondent. The submissions are substantively considered in the analysis that follows.
Duty of a first appellate court
5. 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.
6. The appellant was charged alongside another person, Wycliff Mwangi Muchemi who was charged on separate counts of gang rape and an alternative charge of committing an indecent act with an adult against E.W.N.
Evidence before the trial court
7. The prosecution called five witnesses to support its case. PW 1, Nick Muriithi was the complainant in the case against the appellant. PW 2, E. W. N. was the complainant in the case of gang rape and indecent act with an adult that faced Wycliff Mwangi Mucheni, a co-accused of the appellant. PW 3, Hezron Macharia was a clinical officer at Kerugoya County Referral hospital. He attended to both PW 1 and PW 2. PW 4, PC Peter Kinyanjui participated in the arrest of the appellant and the accused person in the case of gang rape and indecent act with an adult. PW 5, IP Agnes Wambui of Kerugoya police station conducted investigations in the two cases.
8. The appellant did not testify at his trial. The reason was that he absconded court. His last appearance was on 9th January 2023 after PW 3, the clinical officer had testified. On that date, the appellant’s surety asked to be discharged but for reasons not recorded the trial court failed to discharge her. When the case came up next for mention on 23rd January 2023, the appellant did not show up. A warrant of arrest was issued against him. The surety kept asking the court for more time to trace him but the appellant was not traced at once. The appellant’s co-accused was in custody. On 10th May 2023, on application by the prosecution, the court made a decision to proceed with the case against the appellant under Article 50(2)(f) of the constitution. The hearing proceeded in the appellant’s absence until judgment was delivered. He was found guilty of the offence of robbery with violence.
9. On 6th September 2023, the trial court made the difficult decision to sentence the surety to six months’ imprisonment for failure to produce the appellant in court or to forfeit the bond sum of KShs 300,000/= to court. The surety stayed in custody for about one month and one week until 11th October 2023, when the appellant was produced in court. The court was informed that he had been rearrested on 5th October 2023 and subsequently charged with failing to attend court to which he pleaded guilty and he had been sentenced to serve one month’s imprisonment.
10. The trial court herein having found him guilty of robbery with violence proceeded to sentencing. Before sentencing, the trial court asked him for mitigation but he said he had none. He was sentenced to suffer death as provided by law.
11. Evidence tendered at the trial against the appellant came from PW 1 and PW 2.
12. PW 1 gave evidence that they were longtime friends with the appellant and were both staying in Kerugoya town. PW 1 was also a friend of PW 2 who was a student at a medical college in Nyeri.
13. On 26th June 2023, PW 2 travelled from Nyeri to visit PW 1 in Kerugoya town. While they were together, the appellant invited PW 1 to his house for a party. Apparently, the appellant’s girlfriend had arrived from the US. PW 1 and PW 2 went to the party where there was drinking of alcohol.
14. Later in the night, they all went to County hotel where they continued drinking. PW 1 mentioned that they were with the appellant, his co-accused at the trial, the appellant’s sister and girlfriend and one Victor. PW 1 testified further that they decided to part ways at around midnight and they walked to the appellant’s house and that some of them were drunk. That PW 1 and his girlfriend started arguing and the appellant, PW 1, PW 2 and the appellant’s sister got out of the house.
15. As they were walking, the appellant went to him and spoke to him then punched PW 1 in the face and he fell down. While there, he felt that he had been attacked by other people. They stepped on him and he lost consciousness. He felt the assailants search his pockets. He then realized that his leg was broken. He afterwards realized that he had lost his Redmi 9A Plus phone. He was taken to Kerugoya hospital in the morning where he met PW 2 who informed him that he had been raped by two men, Wycliff Mwangi, the appellant’s co-accused and Macharia. PW 1 remembered that he had been drinking with Wycliff, the appellant’s co-accused at County bar. PW 1 was treated and discharged. He produced as exhibits the clothes he was wearing, a sweat shirt and a T-shirt.
16. In cross-examination, PW 1 said that after the appellant had punched him, he was surrounded by people who hit him and stole his money and phone. He said that that Emily and Victor tried to pull him up. That he was taken to hospital by a passerby.
17. PW 2’s evidence was largely similar to that of PW 1 up to the point when they were leaving the appellant’s house for the second time. She confirmed that when they went to the appellant’s house for the first time, they found the appellant, his girlfriend, his sister and one Victor.
18. PW 2 said that when they went back to the house the second time, she requested the appellant’s girlfriend to get her a place to sleep. The appellant was not amused and he threw them out. As they were walking out the appellant went and punched PW 1 and PW 1 told her to hide. She hid for about 20 minutes and when she came out of the hiding, she found PW 1 lying on the ground and he could not stand. She left the scen and went to County bar to seek assistance. She found the appellant’s co-accused and one Macha. They went back to the scene where they found PW 1 bleeding and he could not stand. The co-accused and Mach then told her that she had to help them before they assisted her with PW 1. They pulled her behind the appellant’s house where they raped her in turns both vaginal and anal. After they were done she dressed and went back to where she had left PW 1 lying and Victor found her there and took her to hospital. While at the hospital, PW 1 also came and found her there.
19. In cross-examination, PW 2 said that the appellant followed them as they left his house and the fight broke out while they were still in the compound inside the gate. She said the appellant’s house had security lights. She said she hid behind a bush and she did not see what happened while there. When she reappeared she found PW 1 lying outside the compound. She conceded that all of them had taken alcohol. She also said that Victor told her that some people tried to rob PW 1.
20. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt. He convicted him accordingly.
Analysis
21. In arriving at his decision, the learned trial magistrate, set out the ingredients of the offence of robbery with violence under section 295 and 296(2) of the Penal Code, He found that there was uncontroverted evidence that PW 1 was attacked on the material night, he sustained injuries in the attack and he was robbed of his items. Further that the appellant was positively identified as one of the attackers. He found PW 1 and PW 2 to be credible witnesses and their evidence to be reliable as it lacked inconsistencies and that their stories tallied.
22. 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 issue upon which this appeal rests is whether on the whole the offence of robbery with violence contrary to section 296(2) of the Penal Code was proved against the appellant beyond a reasonable doubt.
23. Some of the submissions made by the appellant are irrelevant to the appeal because, either they were not part of the proceedings before the lower court or they were not raised as grounds of appeal. For instance, the submissions that the trial court erred in proceeding with the case in the absence of the appellant’s advocate after the appellant had absconded and then rearrested, is not part of the grounds of appeal.
24. The other issue submitted upon and which is not part of the grounds of appeal is that the appellant stayed in custody for ten days before he was charged and this delay occasioned him an injustice.
25. Yet another issue submitted upon and not covered in the grounds of appeal is that there was no identification parade conducted for the appellant. I think here the appellant was simply trying to cast his net wide in the hope that any submission might earn him an acquittal. That is not fare because it takes up much of the court’s time going through the submissions to establish which ones are relevant to the appeal.
26. Secondly, some of the grounds of appeal have no basis at all. For instance, ground 2 where the appellant alleges that the learned trial magistrate erred in law and fact by failing to consider that the investigations done were shoddy and malicious since the appellant had housed the complainant for some period for he had nowhere to reside. I have considered the entire evidence adduced before the trial court and I do not see from which evidence this ground arises.
27. I find these issues to be otiose and therefore not for consideration by this court.
28. Grounds numbers (vii), (viii) and (ix) of appeal respectively that the learned trial magistrate erred in law and fact by failing to put the appellant on defense to prove his innocence, by severely sentencing the appellant and failing to consider him being a first offender and by failing to allow the appellant to mitigate his case have no basis and they therefore fail.
29. Starting with the issue of the trial court’s breach of the appellant’s constitutional rights to a fair trial, I agree with learned counsel for the respondent that it was the appellant’s own conduct that caused him to be absent at his subsequent trial after he absconded. This issue is succinctly addressed by Article 50(2)(f) of the Constitution which provides that every accused person has the right to a fair trial which includes the right to be present when being tried, unless his conduct makes it impossible for the trial to proceed. In this case, the appellant’s conduct of absconding trial made it impossible for the case to proceed for nine months.
30. The trial court properly proceeded under the said provisions of the constitution. That position is supported by the holding of the High Court in the case of Republic v Galma Abagaro Shano [2017] KEHC 2444 (KLR) cited by learned counsel for the respondent that where an accused person deliberately absents himself from court or absconds, he deprives himself of his right to be present at the hearing and when the case proceeds for hearing he cannot afterwards be heard to complain that his constitutional right to be present at the hearing was breached. When he was rearrested and presented to court, the case was already concluded and he had been convicted. The submission that the case ought to have been reopened and PW 4 and PW 5 recalled for them to testify again is without merit.
31. The learned trial magistrate asked him for mitigation but he said he had none. His allegation that he was not allowed to mitigate is therefore false. The sentence of death that was passed against him is the only lawful sentence for the offence of robbery with violence as provided for under the law.
32. 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.
33. The issues which remain for determination as per the grounds of appeal are whether the trial court gave due regard to the evidence adduced and if so whether the same was capable of proving the charge of robbery with violence against the appellant beyond a reasonable doubt.
34. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellant by the trial court. He has submitted the following issues as arising from the grounds of appeal and for determination:
i. Whether the appellant was accorded a fair hearing.
ii. Whether it was in the public interest to allow an out of court settlement of the case.
iii. Whether the prosecution proved its case beyond a reasonable doubt.
iv. Whether the appellant was allowed to mitigate.
v. Whether the appellant’s sentence was severe in the circumstances.
35. Learned counsel for the respondent set out the ingredients of the charge of robbery with violence as explained in the case of Oluoch v Republic (1985) KLR and said that the same had been satisfied by the prosecution and the trial court was correct to find so.
36. The offence of robbery as robbery with violence (as the prosecution is wont to refer to it) is set out under sections 295 and 296 of the Penal Code 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.”
37. 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.”
38. As provided for under section 295 of the PC and explained in the decision above, in an offence of robbery, there is 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 other people that is, they were more than one and second that they used violence upon the complainant, PW 1, because the appellant punched him and the others jumped on him while he was on the ground.
41. It was the prosecution’s case that after the appellant punched PW 1 in the face, other people joined in attacking him and therefore that he was beatedn and robbed of his items by more than one person, that is, the appellant was accompanied by other people. However, PW 1 and PW 2 never identified any of these other people despite all the time they had spent together with the appellant and his friends who had attended the party. In fact, after they had come from County Bar, there is no evidence that other people other than the appellant, his girlfriend, his sister and Victor, besides PW 1 and PW 2 went back to the appellant’s house. In the circumstances, one can only find that there were no other people other than those named above. Therefore, the allegation that other people from the party joined in assaulting PW 1 and subsequently relieved him of his items cannot be true.
42. All the same, I am satisfied from the evidence of PW 1 and PW 2 that the appellant punching PW 1 and this constitutes violence. The complainant’s evidence of having been injured was corroborated by PW 2 and PW 3, the clinical officer who examined PW 1 within a short time of the incident and found that the complainant’s clothes were blood stained and he had injuries on various parts of his body. He assessed the degree of injury as harm and produced the P3 form as an exhibit.
43. I am therefore satisfied as was the learned trial magistrate that the appellant inflicted violence upon the complainant on the material night. However, a single punch to the face could not have resulted in the other injuries sustained as described by PW 3.
44. There was clear evidence that the appellant and PW 1 were longtime friends meaning that they knew each other well. There was also evidence that the appellant invited PW 1 to his house for a party because the appellant’s girlfriend had come from the USA. There was further evidence that at the party, those present imbibed liquor and by all measures, they became intoxicated. Even then, they went out to County bar and took more liquor and came back to the appellant’s house.
45. I am aware that an appellate court should be slow to upset the findings of the trial court (see the case of Okeno v. Republic [1972] EA 32)
46. I am afraid I have to defer with the learned trial magistrate on his findings and I think this is a good case to interfere and I agree with the submissions by the appellant that the learned trial magistrate did not place the evidence of the witnesses in context in his evaluation.
47. PW 2, who was PW 1’s friend was explicit that the appellant threw them out of his house because he appeared pissed off by her request to his girlfriend for a place to sleep.
48. Although they did not say so, it is highly likely that there was an altercation between the appellant and PW 1. I am prepared to find as testified by PW 1 that the appellant punched PW 1 once in the face. Weighing all the circumstances obtaining at the time. it appears most probable that the appellant threw them out of his gate.
49. However, given that there is no evidence that there were other people at the appellant’s house, other than the appellant, his girlfriend, his sister, PW 1, PW 2 and Victor, the possibility that the appellant would have gotten other people to assault and steal from PW 1 was not proved. It follows that apart from the appellant assaulting PW 1 by punching him in the face, it was not shown that he stole anything him.
50. 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.”
51. This decision of the High Court underscores the importance of the prosecution tendering cogent evidence to prove that indeed theft had been committed. 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 person will not do. A case of robbery under section 296(2) is a very serious offence 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 evidence that each of the ingredients of the offence has been proved.
52. The Court of Appeal considered this issue 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.”
53. From the evidence of PW 1 and PW 2, it is highly likely that while they were outside the gate, perhaps even some distance away, they spotted some people at a distance. These people may not have appeared friendly and that was why PW 1 advised PW 2 to hide in the bushes. She did and it follows that this was the point at which PW 1 was attacked again and his items taken.
54. Another possibility was that considering the evidence by both PW 1 and PW 2 that they had been drinking the whole night and the concession by PW 1 that he was drunk it follows that he was so inebriated that he fell on the road. I say so because PW 2 said that at some point she tried with Victor to lift him up but they were unable. The question is, at what point did Victor come onto the scene? It appears that he was with them all the time.
55. But PW 2 does not explain what became of Victor after the unsuccessful attempt to lift PW 1 from the ground. What she says was that she came out of her hiding to find PW 1 lying on the ground. She then went to seek for assistance from County bar. She came back to the scene with two other people but there is no indication that PW 1 noticed them at all. This would suggest that he had blacked out for so long, right from the point PW 2 hid in the bushes, through her coming out to find him lying on the ground, then going to County bar to fetch the two men and back. Even as the two men took PW 2 into the bushes to molest her, he did not notice anything.
56. PW 1 alleged that he lost consciousness yet he also said he was able to feel items being taken from his pockets. All this while, there is no indication of where Victor was. After PW 2’s alleged unfortunate ordeal in the hands of the two men, she then says that again she went back to the scene and here Victor reappeared because she said that she found him there and he took her to hospital. It is not clear where Victor reappeared from. Yet PW 1 said he was picked from the ground and taken to hospital by a member of the public.
57. The place of Victor in this entire scenario is not well explained by PW 1 and PW 2 in their evidence. Yet, Victor was not made available to testify as a prosecution witness to clarify this issue and no explanation was offered for that failure and to support the weak evidence tendered by PW 1 and PW 2 that indeed the appellant had attacked him alongside others and stolen his phone and money.
58. In the circumstances, I am inclined to believe as submitted by the appellant that had Victor been made available to testify, his evidence would have been adverse to that which was tendered by the prosecution. (see the case of Bukenya and others v Uganda 1972] EA, 549 where it was held that:
“It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but also the duty to call any person whose evidence appears essential to the just decision of the case. Thirdly, while the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled, under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.”
59. I have found in this case that the evidence tendered by PW 1 and PW 2 was barely adequate to prove the charge of robbery with violence and the failure to ca
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Introduction
1. The appellant was charged before the trial court with the offence of robbery with violence contrary to section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on 26th June 2022 at Kimuri village in Kirinyaga Central Sub-County within Kirinyaga County, jointly with others not before court robbed Nick Muriithi Nyaguthii of cash KShs 1,700/= and two mobile phones make Redmi 9A Plus valued at KShs 23,700/= and at the time of such robbery wounded the said Nick Muriithi Nyaguthiii by way of foot kicking and fist punching. The appellant was found guilty, convicted and sentenced to death by the trial court.
Grounds of appeal
2. The appellant was aggrieved by the decision and preferred this appeal through his petition filed on 24th October 2023 based on the grounds that:
i. the learned trial magistrate erred in law and fact by failing to consider that the evidence produced in court was not credible.
ii. the learned trial magistrate erred in law and fact by failing to consider that the investigations done were shoddy and malicious since the appellant had housed the complainant for some period for he had nowhere to reside.
iii. the learned trial magistrate erred in law and fact by not considering the circumstances of the case, that is, the appellant had a house party and had invited many other friends.
iv. the learned trial magistrate erred in law and fact by failing to give a fair hearing to establish that the evidence that was adduced before the court was uncollaborative (sic) and full of malice.
v. the learned trial magistrate failed to consider that the evidence adduced by the prosecution was not proved beyond reasonable doubt.
vi. the learned trial magistrate erred in law and fact by failing to consider the relationship between the two families and effort made to have the matter settled outside court, that is, the complainant’s parents bonded the appellant out during the trial of the case.
vii. the learned trial magistrate erred in law and fact by failing to put the appellant on defense to prove his innocence.
viii. the learned trial magistrate erred in law and fact by severely sentencing the appellant and failing to consider him being a first offender.
ix. the learned trial magistrate erred in law and fact by failing to allow the appellant to mitigate his case.
3. The appellant therefore prays that the appeal be allowed, the conviction quashed and the sentence set aside and he be set at liberty.
Submissions
4. The appeal was disposed of by way of written submissions filed by the appellant in person and by learned counsel for the respondent. The submissions are substantively considered in the analysis that follows.
Duty of a first appellate court
5. 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.
6. The appellant was charged alongside another person, Wycliff Mwangi Muchemi who was charged on separate counts of gang rape and an alternative charge of committing an indecent act with an adult against E.W.N.
Evidence before the trial court
7. The prosecution called five witnesses to support its case. PW 1, Nick Muriithi was the complainant in the case against the appellant. PW 2, E. W. N. was the complainant in the case of gang rape and indecent act with an adult that faced Wycliff Mwangi Mucheni, a co-accused of the appellant. PW 3, Hezron Macharia was a clinical officer at Kerugoya County Referral hospital. He attended to both PW 1 and PW 2. PW 4, PC Peter Kinyanjui participated in the arrest of the appellant and the accused person in the case of gang rape and indecent act with an adult. PW 5, IP Agnes Wambui of Kerugoya police station conducted investigations in the two cases.
8. The appellant did not testify at his trial. The reason was that he absconded court. His last appearance was on 9th January 2023 after PW 3, the clinical officer had testified. On that date, the appellant’s surety asked to be discharged but for reasons not recorded the trial court failed to discharge her. When the case came up next for mention on 23rd January 2023, the appellant did not show up. A warrant of arrest was issued against him. The surety kept asking the court for more time to trace him but the appellant was not traced at once. The appellant’s co-accused was in custody. On 10th May 2023, on application by the prosecution, the court made a decision to proceed with the case against the appellant under Article 50(2)(f) of the constitution. The hearing proceeded in the appellant’s absence until judgment was delivered. He was found guilty of the offence of robbery with violence.
9. On 6th September 2023, the trial court made the difficult decision to sentence the surety to six months’ imprisonment for failure to produce the appellant in court or to forfeit the bond sum of KShs 300,000/= to court. The surety stayed in custody for about one month and one week until 11th October 2023, when the appellant was produced in court. The court was informed that he had been rearrested on 5th October 2023 and subsequently charged with failing to attend court to which he pleaded guilty and he had been sentenced to serve one month’s imprisonment.
10. The trial court herein having found him guilty of robbery with violence proceeded to sentencing. Before sentencing, the trial court asked him for mitigation but he said he had none. He was sentenced to suffer death as provided by law.
11. Evidence tendered at the trial against the appellant came from PW 1 and PW 2.
12. PW 1 gave evidence that they were longtime friends with the appellant and were both staying in Kerugoya town. PW 1 was also a friend of PW 2 who was a student at a medical college in Nyeri.
13. On 26th June 2023, PW 2 travelled from Nyeri to visit PW 1 in Kerugoya town. While they were together, the appellant invited PW 1 to his house for a party. Apparently, the appellant’s girlfriend had arrived from the US. PW 1 and PW 2 went to the party where there was drinking of alcohol.
14. Later in the night, they all went to County hotel where they continued drinking. PW 1 mentioned that they were with the appellant, his co-accused at the trial, the appellant’s sister and girlfriend and one Victor. PW 1 testified further that they decided to part ways at around midnight and they walked to the appellant’s house and that some of them were drunk. That PW 1 and his girlfriend started arguing and the appellant, PW 1, PW 2 and the appellant’s sister got out of the house.
15. As they were walking, the appellant went to him and spoke to him then punched PW 1 in the face and he fell down. While there, he felt that he had been attacked by other people. They stepped on him and he lost consciousness. He felt the assailants search his pockets. He then realized that his leg was broken. He afterwards realized that he had lost his Redmi 9A Plus phone. He was taken to Kerugoya hospital in the morning where he met PW 2 who informed him that he had been raped by two men, Wycliff Mwangi, the appellant’s co-accused and Macharia. PW 1 remembered that he had been drinking with Wycliff, the appellant’s co-accused at County bar. PW 1 was treated and discharged. He produced as exhibits the clothes he was wearing, a sweat shirt and a T-shirt.
16. In cross-examination, PW 1 said that after the appellant had punched him, he was surrounded by people who hit him and stole his money and phone. He said that that Emily and Victor tried to pull him up. That he was taken to hospital by a passerby.
17. PW 2’s evidence was largely similar to that of PW 1 up to the point when they were leaving the appellant’s house for the second time. She confirmed that when they went to the appellant’s house for the first time, they found the appellant, his girlfriend, his sister and one Victor.
18. PW 2 said that when they went back to the house the second time, she requested the appellant’s girlfriend to get her a place to sleep. The appellant was not amused and he threw them out. As they were walking out the appellant went and punched PW 1 and PW 1 told her to hide. She hid for about 20 minutes and when she came out of the hiding, she found PW 1 lying on the ground and he could not stand. She left the scen and went to County bar to seek assistance. She found the appellant’s co-accused and one Macha. They went back to the scene where they found PW 1 bleeding and he could not stand. The co-accused and Mach then told her that she had to help them before they assisted her with PW 1. They pulled her behind the appellant’s house where they raped her in turns both vaginal and anal. After they were done she dressed and went back to where she had left PW 1 lying and Victor found her there and took her to hospital. While at the hospital, PW 1 also came and found her there.
19. In cross-examination, PW 2 said that the appellant followed them as they left his house and the fight broke out while they were still in the compound inside the gate. She said the appellant’s house had security lights. She said she hid behind a bush and she did not see what happened while there. When she reappeared she found PW 1 lying outside the compound. She conceded that all of them had taken alcohol. She also said that Victor told her that some people tried to rob PW 1.
20. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt. He convicted him accordingly.
Analysis
21. In arriving at his decision, the learned trial magistrate, set out the ingredients of the offence of robbery with violence under section 295 and 296(2) of the Penal Code, He found that there was uncontroverted evidence that PW 1 was attacked on the material night, he sustained injuries in the attack and he was robbed of his items. Further that the appellant was positively identified as one of the attackers. He found PW 1 and PW 2 to be credible witnesses and their evidence to be reliable as it lacked inconsistencies and that their stories tallied.
22. 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 issue upon which this appeal rests is whether on the whole the offence of robbery with violence contrary to section 296(2) of the Penal Code was proved against the appellant beyond a reasonable doubt.
23. Some of the submissions made by the appellant are irrelevant to the appeal because, either they were not part of the proceedings before the lower court or they were not raised as grounds of appeal. For instance, the submissions that the trial court erred in proceeding with the case in the absence of the appellant’s advocate after the appellant had absconded and then rearrested, is not part of the grounds of appeal.
24. The other issue submitted upon and which is not part of the grounds of appeal is that the appellant stayed in custody for ten days before he was charged and this delay occasioned him an injustice.
25. Yet another issue submitted upon and not covered in the grounds of appeal is that there was no identification parade conducted for the appellant. I think here the appellant was simply trying to cast his net wide in the hope that any submission might earn him an acquittal. That is not fare because it takes up much of the court’s time going through the submissions to establish which ones are relevant to the appeal.
26. Secondly, some of the grounds of appeal have no basis at all. For instance, ground 2 where the appellant alleges that the learned trial magistrate erred in law and fact by failing to consider that the investigations done were shoddy and malicious since the appellant had housed the complainant for some period for he had nowhere to reside. I have considered the entire evidence adduced before the trial court and I do not see from which evidence this ground arises.
27. I find these issues to be otiose and therefore not for consideration by this court.
28. Grounds numbers (vii), (viii) and (ix) of appeal respectively that the learned trial magistrate erred in law and fact by failing to put the appellant on defense to prove his innocence, by severely sentencing the appellant and failing to consider him being a first offender and by failing to allow the appellant to mitigate his case have no basis and they therefore fail.
29. Starting with the issue of the trial court’s breach of the appellant’s constitutional rights to a fair trial, I agree with learned counsel for the respondent that it was the appellant’s own conduct that caused him to be absent at his subsequent trial after he absconded. This issue is succinctly addressed by Article 50(2)(f) of the Constitution which provides that every accused person has the right to a fair trial which includes the right to be present when being tried, unless his conduct makes it impossible for the trial to proceed. In this case, the appellant’s conduct of absconding trial made it impossible for the case to proceed for nine months.
30. The trial court properly proceeded under the said provisions of the constitution. That position is supported by the holding of the High Court in the case of Republic v Galma Abagaro Shano [2017] KEHC 2444 (KLR) cited by learned counsel for the respondent that where an accused person deliberately absents himself from court or absconds, he deprives himself of his right to be present at the hearing and when the case proceeds for hearing he cannot afterwards be heard to complain that his constitutional right to be present at the hearing was breached. When he was rearrested and presented to court, the case was already concluded and he had been convicted. The submission that the case ought to have been reopened and PW 4 and PW 5 recalled for them to testify again is without merit.
31. The learned trial magistrate asked him for mitigation but he said he had none. His allegation that he was not allowed to mitigate is therefore false. The sentence of death that was passed against him is the only lawful sentence for the offence of robbery with violence as provided for under the law.
32. 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.
33. The issues which remain for determination as per the grounds of appeal are whether the trial court gave due regard to the evidence adduced and if so whether the same was capable of proving the charge of robbery with violence against the appellant beyond a reasonable doubt.
34. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellant by the trial court. He has submitted the following issues as arising from the grounds of appeal and for determination:
i. Whether the appellant was accorded a fair hearing.
ii. Whether it was in the public interest to allow an out of court settlement of the case.
iii. Whether the prosecution proved its case beyond a reasonable doubt.
iv. Whether the appellant was allowed to mitigate.
v. Whether the appellant’s sentence was severe in the circumstances.
35. Learned counsel for the respondent set out the ingredients of the charge of robbery with violence as explained in the case of Oluoch v Republic (1985) KLR and said that the same had been satisfied by the prosecution and the trial court was correct to find so.
36. The offence of robbery as robbery with violence (as the prosecution is wont to refer to it) is set out under sections 295 and 296 of the Penal Code 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.”
37. 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.”
38. As provided for under section 295 of the PC and explained in the decision above, in an offence of robbery, there is 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 other people that is, they were more than one and second that they used violence upon the complainant, PW 1, because the appellant punched him and the others jumped on him while he was on the ground.
41. It was the prosecution’s case that after the appellant punched PW 1 in the face, other people joined in attacking him and therefore that he was beatedn and robbed of his items by more than one person, that is, the appellant was accompanied by other people. However, PW 1 and PW 2 never identified any of these other people despite all the time they had spent together with the appellant and his friends who had attended the party. In fact, after they had come from County Bar, there is no evidence that other people other than the appellant, his girlfriend, his sister and Victor, besides PW 1 and PW 2 went back to the appellant’s house. In the circumstances, one can only find that there were no other people other than those named above. Therefore, the allegation that other people from the party joined in assaulting PW 1 and subsequently relieved him of his items cannot be true.
42. All the same, I am satisfied from the evidence of PW 1 and PW 2 that the appellant punching PW 1 and this constitutes violence. The complainant’s evidence of having been injured was corroborated by PW 2 and PW 3, the clinical officer who examined PW 1 within a short time of the incident and found that the complainant’s clothes were blood stained and he had injuries on various parts of his body. He assessed the degree of injury as harm and produced the P3 form as an exhibit.
43. I am therefore satisfied as was the learned trial magistrate that the appellant inflicted violence upon the complainant on the material night. However, a single punch to the face could not have resulted in the other injuries sustained as described by PW 3.
44. There was clear evidence that the appellant and PW 1 were longtime friends meaning that they knew each other well. There was also evidence that the appellant invited PW 1 to his house for a party because the appellant’s girlfriend had come from the USA. There was further evidence that at the party, those present imbibed liquor and by all measures, they became intoxicated. Even then, they went out to County bar and took more liquor and came back to the appellant’s house.
45. I am aware that an appellate court should be slow to upset the findings of the trial court (see the case of Okeno v. Republic [1972] EA 32)
46. I am afraid I have to defer with the learned trial magistrate on his findings and I think this is a good case to interfere and I agree with the submissions by the appellant that the learned trial magistrate did not place the evidence of the witnesses in context in his evaluation.
47. PW 2, who was PW 1’s friend was explicit that the appellant threw them out of his house because he appeared pissed off by her request to his girlfriend for a place to sleep.
48. Although they did not say so, it is highly likely that there was an altercation between the appellant and PW 1. I am prepared to find as testified by PW 1 that the appellant punched PW 1 once in the face. Weighing all the circumstances obtaining at the time. it appears most probable that the appellant threw them out of his gate.
49. However, given that there is no evidence that there were other people at the appellant’s house, other than the appellant, his girlfriend, his sister, PW 1, PW 2 and Victor, the possibility that the appellant would have gotten other people to assault and steal from PW 1 was not proved. It follows that apart from the appellant assaulting PW 1 by punching him in the face, it was not shown that he stole anything him.
50. 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.”
51. This decision of the High Court underscores the importance of the prosecution tendering cogent evidence to prove that indeed theft had been committed. 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 person will not do. A case of robbery under section 296(2) is a very serious offence 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 evidence that each of the ingredients of the offence has been proved.
52. The Court of Appeal considered this issue 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.”
53. From the evidence of PW 1 and PW 2, it is highly likely that while they were outside the gate, perhaps even some distance away, they spotted some people at a distance. These people may not have appeared friendly and that was why PW 1 advised PW 2 to hide in the bushes. She did and it follows that this was the point at which PW 1 was attacked again and his items taken.
54. Another possibility was that considering the evidence by both PW 1 and PW 2 that they had been drinking the whole night and the concession by PW 1 that he was drunk it follows that he was so inebriated that he fell on the road. I say so because PW 2 said that at some point she tried with Victor to lift him up but they were unable. The question is, at what point did Victor come onto the scene? It appears that he was with them all the time.
55. But PW 2 does not explain what became of Victor after the unsuccessful attempt to lift PW 1 from the ground. What she says was that she came out of her hiding to find PW 1 lying on the ground. She then went to seek for assistance from County bar. She came back to the scene with two other people but there is no indication that PW 1 noticed them at all. This would suggest that he had blacked out for so long, right from the point PW 2 hid in the bushes, through her coming out to find him lying on the ground, then going to County bar to fetch the two men and back. Even as the two men took PW 2 into the bushes to molest her, he did not notice anything.
56. PW 1 alleged that he lost consciousness yet he also said he was able to feel items being taken from his pockets. All this while, there is no indication of where Victor was. After PW 2’s alleged unfortunate ordeal in the hands of the two men, she then says that again she went back to the scene and here Victor reappeared because she said that she found him there and he took her to hospital. It is not clear where Victor reappeared from. Yet PW 1 said he was picked from the ground and taken to hospital by a member of the public.
57. The place of Victor in this entire scenario is not well explained by PW 1 and PW 2 in their evidence. Yet, Victor was not made available to testify as a prosecution witness to clarify this issue and no explanation was offered for that failure and to support the weak evidence tendered by PW 1 and PW 2 that indeed the appellant had attacked him alongside others and stolen his phone and money.
58. In the circumstances, I am inclined to believe as submitted by the appellant that had Victor been made available to testify, his evidence would have been adverse to that which was tendered by the prosecution. (see the case of Bukenya and others v Uganda 1972] EA, 549 where it was held that:
“It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but also the duty to call any person whose evidence appears essential to the just decision of the case. Thirdly, while the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled, under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.”
59. I have found in this case that the evidence tendered by PW 1 and PW 2 was barely adequate to prove the charge of robbery with violence and the failure to ca
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