1. This appeal emanates from the judgement and conviction of Hon. T. Gesora, Chief Magistrate, delivered on 14th June, 2023 and the subsequent sentence passed on 29th January, 2024 by Hon. F. Kombo, Chief Magistrate, in Maua CM’s Criminal Case No. 2485 of 2016.
2. The Appellant Patrick Mutwiri Kubai was jointly charged with another with one count of robbery with violence contrary to Section 275 as read with 296(2) of the Penal Code, Cap 63 Laws of Kenya.
3. As is instructive from the charge sheet, the particulars of the offence were that on 27th May, 2016 at Laare Township, Antuambiu Location, Igembe North Subcounty within Meru County, the Appellant while armed with a dangerous weapon namely a knife robbed Shadrack Mutuma of cash Ksh.16,000/- and at the time of such robbery used actual violence to the said Shadrack Mutuma.
4. After taking the evidence of the witnesses the trial court convicted the Appellant and he was subsequently sentenced to death. The Appellant was the 1st accused person in the lower court case.
5. The eight cited grounds of appeal presented by the Appellant vide the Petition of Appeal dated 5th February, 2024 and the Supplementary Petition of Appeal dated 29th March, 2024 upon which he seeks to upset the conviction and sentence are as follows:
a. The learned F. Kombo, Chief Magistrate erred in law and in fact by passing a death sentence to the Appellant while he was not the trial Magistrate.
b. The learned F. Kombo, Chief Magistrate erred in law and in fact by passing a harsh and excessive sentence contrary to the Supreme Court’s decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR.
c. The learned F. Kombo, Chief Magistrate erred in law and in fact by purportedly alleging that he considered the Appellant’s mitigation before the sentence while there are no mitigation factors on record suggesting that the Appellant was not allowed the opportunity to mitigate before the sentence.
d. The learned trial Magistrate erred in law and in fact by not failing to find (sic) that the Appellant was not found with any exhibit stolen from the Complainant and neither was he found with the offensive weapon.
e. The learned trial Magistrate erred in law and in fact by not finding that the evidence on the Appellant’s identification was contradictory and unsound to base a conviction upon.
f. The learned trial Magistrate erred in law and in fact by failing to find that there was no enough light to (enable the Complainant to) correctly and accurately identify the Appellant.
g. The learned trial Magistrate erred in law and in fact by failing to find that the Appellant is disabled and cannot run as fast as was alleged by the Prosecution.
h. The learned trial Magistrate erred in law and in fact by failing to find that the prosecution did not proof (sic) their case beyond reasonable doubt.
6. The court directed that the appeal proceeds by way of written submissions and both the Appellant and the State filed their respective submissions.
7. I have perused the petition of appeal, the submissions by the two sides and the record in its entirety. This court has a legal duty to re-analyze, re-evaluate and re-assess the evidence adduced in the lower court so as to come up with its own conclusions bearing in mind that it did not have the benefit of seeing the witnesses testify (see Okeno vs Republic [1972] E.A, 32 at 36; Pandya vs Republic [1957] EA 336; Shantilal M. Ruwala vs Republic [1957] EA 570; and Peter vs Sunday Post [1958] EA 424.
8. The first prosecution witness was Shadrack Mutuma Munoru (hereinafter referred to as “the complainant”). The witness testified before the trial court as PW1. He told the court that he worked as a shopkeeper.
9. The Complainant recalled the events of 27th May, 2016 and stated that he had just closed one of his shops christened “Splendid” when at about 8.00pm he met two men in a corridor as he was leaving. The two demanded for money which the complainant had wrapped up in a black polythene bag which he had collected from his Mpesa outlet.
10. The Complainant told the trial court that there was sufficient light from a 100-watt bulb at the time of the robbery and that he saw the two men, whose faces were familiar, and described one of them – the Appellant – as having one short leg.
11. The Complainant told the trial court that when refused to part with his money, the Appellant stabbed him with a Somali sword as his confederate blocked the Complainant in the corridor and that the two then grabbed the Complainant’s money that was wrapped in a black polythene bag, amounting to Ksh.16,000/- and took to their heels. He screamed and one Jackson Muchomba (PW3) went to his aid. The robbers fled with his money. The Complainant was taken to Kawiru Hospital where he was admitted for three days. The matter was reported to the police and the Complainant later recorded his statement.
12. Upon being cross examined by learned Counsel for the Appellant, the Complainant told the court that when PW3 responded to the Complainant’s screams, he found the attackers in the corridor as they were robbing the Complainant and that they then fled. He stated that he did not mention the attackers to the police when he recorded his statement.
13. The Prosecution called Joseph Mithika as the second witness (PW2). The witness stated that on 27th May, 2016 at about 8pm, he was proceeding to a shop that was near the Complainant’s shop when he heard the latter shouting and screaming for help stating that he had been attacked by thieves. He then ran to the aid of the Complainant and met two men, one tall and the other short, running away from the Complainant’s shop.
14. The witness told the trial court that the shorter man was known to him as one who sold miraa nearby and that he walked with a gait with his legs “facing each other”. He further stated that he had known the Appellant for more than 8 years. The witness pointed out the Appellant as the shorter man and stated that he had a knife and a black paper bag as he ran away.
15. The witness stated further that the area was well lit by electric bulbs and that he was able to clearly see the Appellant’s face and clothes which he stated included a brown jacket and blue pair of jeans trousers. He stated that he found Mujumbe assisting the Complainant, who was bleeding from the abdomen area.
16. The third prosecution witness was Jackson Mujumbe Ndubi (PW3), who told the court that on the night of the attack, he heard the Complainant screaming and stating that he had been stabbed. He proceeded to the Complainant’s shop where he saw the Complainant in a corridor with two other men, whose faces he saw and recognized. The two men then took to their heels and the witness ran after them while raising an alarm but the two disappeared into a nearby market. The witness stated that the Appellant was one of the two men and that he had a knife.
17. Edward Mugambi, a Clinical Officer at Laare Health Centre testified as PW3 and produced as exhibits the Complainant’s P3 form (PExh1), treatment notes (PExh2) and discharge summary (PExh3) as exhibits. He stated that the Complainant sustained a sutured stab wound caused by a sharp object to his stomach on 27th May, 2016 and was treated at St. Teresa’s Mission Hospital where he was admitted for three days. The degree of injury was classified as grievous harm.
18. The prosecution called Ezra Kimathi Mukaira as PW5. The witness told the trial court that he was at a shop near the Complainant’s shop on 27th May, 2016 when he heard a commotion from the Complainant’s shop. He then saw the Complainant and two men running away. He explained that there was sufficient light from an electric bulb that was on.
19. PW5 told the trial court that one of the two attackers had a knife and that he saw his face and recognized him as a person that he had earlier seen within around Laare Market. The witness stated that the man was familiar to him. He described the said attacker as being “bowlegged”.
20. The witness stated that the Complainant was holding his side and was bleeding from the stomach and said that he had been stabbed. He was promptly taken to hospital.
21. Police Constable James Kanampiu testified as PW6. He stated that he took over the investigations from Police Constable Walter Jayballa after the latter resigned from the National Police Service.
22. PW6 stated that the Complainant was attacked and robbed of his money on 27th May, 2016 by two men that he could recognize and that he was stabbed with a knife during the robbery. The Complainant was taken to hospital and the matter was later reported to the police and witnesses recorded their statements.
23. The officer told the trial court that the complainant led the police to arrest the Appellant and the other man was also subsequently apprehended.
24. The prosecution closed its case at that stage and in the lower court’s ruling delivered on 5th December, 2022, the Court found that a prima facie case had been established against all the Appellant and his co-accused and they were all placed on their defence.
25. The Appellant told the trial court in his sworn defence that he was at his home on 27th May, 2016. He then went to Laare to make plans for his miraa business. He was shocked when he was arrested as he was chewing miraa. He denied committing the offence that he was charged with.
26. The Appellant’s co-accused – Patrick Kimathi Julius – also gave a sworn defence and denied ever committing the offence.
27. Neither the Appellant nor his co-accused called witnesses.
28. I have considered the grounds of appeal, the filed submissions, the evidence adduced before the trial court and the lower court’s record in its entirety, I deduced the issues that I am now tasked to determine as follows:
a. Whether the Appellant was properly identified as one of the men who attacked and robbed the Complainant.
b. Whether the offence of robbery with violence was proved as against the Appellant beyond reasonable doubt.
c. Whether Hon. Kombo fell into error in sentencing the Appellant when he is not the one who conducted the trial, heard witnesses and wrote the judgement.
d. Whether the sentence of death that was imposed upon the Appellant was excessive.
29. The above issues which culminate in the question whether the prosecution proved the offence of robbery with violence against the Appellant beyond reasonable doubt and whether the sentence meted upon the Appellant was appropriate.
30. Inevitably, this court in determining the issues stated above must first satisfy itself that the ingredients of the offence of robbery with violence were proved against the Appellant in respect of the two counts, beyond reasonable doubt, as is the requirement in law.
31. The offence of robbery with violence is provided for under Section 295 and 296(2) of the Penal Code as follows:
“295. 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.
296(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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
32. From the provisions above, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established:
(i) The offender is armed with any dangerous or offensive weapon or instrument; or
(ii) The offender is in the company of one or more other person or persons; or
(iii) The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person.
33. Any of the above three findings is sufficient to convict an offender under Section 296(2) of the Penal Code.
34. Based on the evidence on record, particularly that of PW1 who distinctly gave a recollection of what unfolded on the night of 27th May, 2016 at his shop at Laare Township, it is clear and undisputed that PW1 was attacked by two robbers who were armed with a knife, which the Complainant described as a Somali sword and who then robbed the Complainant of cash Ksh.16,000/- that he had. PW1 stated that at the time of the robbery, the attackers used violence by stabbing him with the knife in the abdomen.
35. The evidence of PW1 therefore satisfies me that the offence of robbery with violence was committed as against PW1, for the reasons that the attackers stole Ksh.16,000/- from the Complainant and were at the time of the theft more than one in number (two men); were armed with a dangerous and/or offensive weapon namely a knife (or Somali sword); and used personal violence against PW1 by stabbing him in the abdomen as they robbed him. Indeed, PW4 confirmed that the Complainant sustained a sutured stab wound caused by a sharp object to his stomach on 27th May, 2016 and was treated at St. Teresa’s Mission Hospital where he was admitted for three days
36. The Learned trial Magistrate therefore reached a correct finding on the above issue when he held that the Complainant was a victim of the offence of robbery with violence.
37. What then is left for this court to determine is whether the Appellant was properly identified as one of the men who attacked and robbed the Complainant and whether the offence of robbery with violence was proved as against the Appellant beyond reasonable doubt.
38. On the two issues, the learned trial Magistrate, while determining the same, observed as follows:
“All witnesses for the prosecution were consistent that they witnessed aspects of the attack. PW2, 3 and 5 saw the two accused run away from the scene. The two are well known and were recognized. The injury to PW1 was confirmed by PW4. The witnesses had no other reasons as to why they would frame the accused persons and I have believed their accounts. There was no contradiction whatsoever.
On the other hand, other than a denial that they participated in the robbery, the accused could not and did not corroborate their accounts. There was no way of confirming that the 1st Accused was at home on the day of the said robbery……….
……….Their defence is a mere denial without backing of corroboration. I am unable to accept it. They are well known people in the town. PW2 has known them for long a few years (sic). I have no doubt that they were well recognized by witnesses who rushed to respond to the distress call. Their identity is not in doubt. 1st Accused had a knife and he carried the bag with the money.
I am satisfied that the prosecution has proved its case as required. I find the accused persons guilty as charged and accordingly convict them under Section 215 of the CPC”.
39. Relooking at the evidence of the prosecution, PW1 stated that he saw his attackers well and recognized them, particularly the Appellant, who was familiar to him as he had severally seen him in the area over a considerable period of time. He stated that he saw the Appellant’s face as there was sufficient electric light from the 100-watt bulb that was on. He also explained that the Appellant walked with a gait.
40. On his part, PW2 stated that he saw two men running away after attacking the Complainant. He stated that he recognized the Appellant, who was well known to him as one who sold miraa nearby and that he walked with a gait with his legs “facing each other”. He further stated that he had known the Appellant for more than 8 years.
41. PW5 stated that he saw two men running away and that one was “bowlegged”. He stated that there was sufficient light and that he recognized the Appellant’s face as one of the attackers who had a knife and a black paperbag. He had on several occasions seen the Appellant within the area.
42. The testimonies of the three witnesses was in my view consistent. PW1 and PW2 recognized the Appellant, who was well known to the two as they had seen him within the area and known him over a considerable period of time. There is evidence that there was sufficient light that allowed them to recognize the Appellant. The Appellant had a knife as he fled. In my opinion, this was a case of recognition as the witnesses who saw the Appellant knew him well before the robbery. The prosecution proved beyond reasonable doubt, in my view, through the evidence of the witnesses that the Appellant was one of the attackers.
43. It is therefore my persuasion that the learned trial magistrate correctly reached the finding that the Appellant was one of the two men who violently robbed the Complainant. I cannot in the premises fault the trial court for convicting the Appellant.
44. The Appellant challenged Hon. Kombo’s authority to sentence him when he was not the one who heard the case and wrote the judgement. However, it is my view that the sentencing Magistrate acted within the law as Section 200(2) of the Criminal Procedure Code allowed him to pass the sentence or to make any other order that Hon. Gesora would have made.
45. The Appellant challenged the death sentence that was imposed upon him by the trial court urging that the same was harsh and excessive. He relied on the Supreme Court decision of Muruatetu & another v Republic [2017] eKLR.
46. The Appellant also challenged the sentence on the ground that he was not given an opportunity to mitigate as no such mitigation was recorded in the lower court file as having been offered by the Appellant.
47. Sentencing is generally an exercise of the trial court’s discretion, as was held in the cases of Simon Kimathi v Republic [2016] eKLR and Simon Kipkirui Kimori v Republic [2019] eKLR. Discretion must however be exercised judiciously.
48. With regard to the issue raised that the Appellant was not given an opportunity to mitigate, I would agree with the Appellant that although the sentencing court stated that the mitigation by the Appellant was considered before he was sentenced, the record does not bear the statement or words that the Appellant put forth in his mitigation. It is apparent then that the court failed to record the Appellant’s mitigation, if any was made.
49. Indeed, the Supreme Court in the case of Muruatetu (supra) emphasized on the importance of an accused person’s mitigation and the requirement that such mitigation be properly recorded and considered before sentencing. The court held that mitigation is a critical aspect of sentencing as only through it is the sentencing court able to take due consideration of the individual aspects of the case before it and exercise its discretion in sentencing. (See also Elphas Fwamba Toili v Republic [2009] eKLR).
50. The sentencing court was therefore under a duty to accord the Appellant an opportunity to mitigate and to record the Appellant’s mitigation and therefore fell into error by failing to do so. The question as to whether the Appellant was prejudiced as a result of the failure is one I will address later in this judgement.
51. As regards the severity of the sentence, the Appellant relied on the case of Muruatetu in which the Supreme Court, while dealing with the constitutionality of the death sentence in respect of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code held that the mandatory nature of the death sentence is unconstitutional.
52. Following the dicta, the Appellant urged this court to allow the appeal on sentence and set aside the death sentence and substitute the same with a lesser, appropriate sentence.
53. It is to be noted that under Section 296(2) of the Penal Code, the only sentence that the law prescribes for the offence of robbery with violence is that of death. My understanding of the Supreme Court’s holding in Muruatetu is that what the court declared as unconstitutional is the mandatory nature of the death sentence and not the death sentence itself. The death sentence is therefore a lawful sentence which may be imposed in appropriate cases.
54. It is however instructive from the directions that the Supreme Court issued on 6th July, 2021 (popularly referred to as Muruatetu II) that the application of the Muruatetu case is to be limited to sentences in respect of the offence of murder only. The Supreme Court stated thus:
“[14]. It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.
[15]. To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40(3), robbery with violence under section 296(2), and attempted robbery with violence under section 297(2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.”
(Underlined emphasis).
55. From the above directions, I understand the Supreme Court to be saying that any challenge to the death sentence as regards any other capital offences other than the offence of murder should be presented through a petition to the High Court for a determination on the constitutionality thereof to be determined.
56. I reach the conclusion thus that without a proper challenge on the constitutional validity of the mandatory death penalty for the offence of robbery with violence having been successfully argued before the relevant courts, there is no basis for interfering with the decision of the trial court on sentence.
57. It is then instructive from Muruatetu that following the above directions given by the Supreme Court, the trial court’s hands in sentencing were limited as there was no other sentence available other than that of death as provided for under Section 296(2) of the Penal Code. That then effectively answers the question as to whether the Appellant was prejudiced by the fact that his mitigation was not recorded, which is in the negative, as the sentencing court had no other available sentence to impose, other than that of death.
58. In the result, for the reasons stated above, the appeal on both conviction and sentence fails and is dismissed. The conviction and sentence of the trial court are upheld.
DELIVERED (virtually), DATED & SIGNED this 20th day of December, 2024.
JOE M. OMIDO.
JUDGE
Appellant: Present, virtually.
For the Appellant: Mr.Mwiti.
For the Respondent: Ms. Rotich.
Court Assistant: Ms. Njoroge.