1. The Appellant was charged alongside one Patrick Mwaniki Njunge with two counts of robbery with violence contrary to Section 295 as read with 296(2) of the Penal Code. The particulars being that on the 19th of January 2017 at Mutarakwa Centre within Kiambu County, jointly with others not before the court, they robbed Francis Ndungu Mburu and Jackline Wanjiku and immediately at the time of such robbery wounded the said Francis Ndungu Mburu and Jackline Wanjiku.
2. They also faced a third count of attempted robbery contrary to Section 297(2) of the Penal Code. The particulars being that on the 19th January 2017 at Mutarakwa center within Kiambu County, jointly with others not before court attempted to rob Samuel Njoroge Njeri and immediately at the time of such robbery wounded the said Samuel Njoroge Njeri.
3. The Appellant denied the offence. In its endeavor to prove the charges, the prosecution called four witnesses. In their defence, the 2nd accused person gave a sworn statement and called one witness while the Appellant herein gave an unsworn statement and did not call any witness.
4. The 2 were convicted and sentenced to each serve 20 years’ imprisonment in counts 1 and 2, and 10 years’ imprisonment in count 3. The sentences were to run concurrently.
5. Being dissatisfied, the Appellant filed this appeal raising the following 8 grounds.
a. That the trial court convicted and sentenced the appellants of the offence charged notwithstanding the prosecution failed to prove their case beyond reasonable doubt.
b. That the trial court convicted and sentenced the appellants of the offence charged notwithstanding the evidence on record was in variant with the charges.
c. THAT the trial court convicted and sentenced the appellants of the offence charged notwithstanding, the prosecution evidence was riddled with contradictions and discrepancies lead into selective judgment.
d. THAT the trial court convicted and sentenced the appellant of the offence charged notwithstanding, the prosecution evidence was riddled with contradictions and discrepancies leading to selective judgment.
e. THAT the trial court convicted and sentenced the appellant of the offence charged notwithstanding, the trial court relied on unsafe identification evidence.
f. THAT the trial court convicted and sentenced the appellant of the offence charged notwithstanding, the charge sheet was fatally defective.
g. THAT the trial court erred in law and fact by imposing a 50 year jail term a sentence that is excessive and harsh.
DUTY OF THE COURT
6. This being a first Appeal I am duty bound to analyze the evidence afresh. I must however bear in mind that I did not have the opportunity to see the witnesses and the demeanor , which the trial court had. These are the guiding principles as found in the cases of Okeno versus R (1972) EA 32, Njoroge Versus R (1987) eKLR 19, Kiilu and another versus R 2005 1 KLR 174.
THE EVIDENCE
7. The 1st complainant, Francis Ndungu Mburu testified as PW1. It was his evidence that on 19th January 2017 he was with Samuel, Pauline and Jacklie at Vineyard bar when 6 men among them the two accused persons got into the club. He told the court that he knew the men and it was the 1st accused whom he referred to as “Peter” who first spoke to him and told him that he usually had “good stuff”.
8. PW1 testified that the men made them uncomfortable so he asked his team they pay the bills and leave. According to PW1, it was at around 10 pm. He confirmed there was electricity so he saw the men clearly. PW1 further testified that as they left, the 1st accused hit him and the 2nd accused attacked him from behind prompting him to raise an alarm. According to PW1 during the attack he was injured and his mobile phone make Nokia 4200 stolen. He also confirmed that the men had also attacked Samuel (PW2) and Jackline (PW3).
9. On cross-examination he confirmed that he physically knew his assailants. He also confirmed that his attackers had used a blunt object and kicks and blows. He told the court that he had known the 2nd accused for about 4 years prior to the incident. He also confirmed that there were security lights so he was able to see the accused person well. He also stated that the accused persons had come into Vineyard between 9- 9:30 pm and the attack had happened at 10 pm.
10. The 3rd complainant; Samuel Njoroge Njeri testified as PW2 and told the court that on the material day he was at Vineyard bar with PW1 and PW3 when some men came in and told PW1 that he always had “nice things”. He confirmed that he used to see the men but did not personally know them. It was his evidence that as they left, the men attacked them first hitting PW1 them him and they started screaming.
11. He told the court the attack was spontaneous so he did not see what objects the men used to hit them but they were blunt. He confirmed that he had fallen down when he was hit but nothing was stolen from him. He told the court that he had ran to report at the nearby Mutarakwa police station where PW1 later found him when he came to make his report. PW2 told the court that they later found out that PW3 had also been attacked and injured and they took her to hospital and she also made her report.
12. On cross-examination, PW2 confirmed they were attacked by 6 men and the 2 accused persons were among them. He also confirmed there was fluorescent light so he was able to see clearly.
13. The 2nd complainant’ Jackline Wanjiku testified as PW3. It was her evidence that on the material day, she had gone to Mutarakwa to visit her boyfriend Ndungu (PW1) and they went to Vineyard to catch a drink. It was her evidence that some men got into the bar and one told her boyfriend that they must sleep with her to feel what he feels. She told the court the accused persons were in the company of others the total being 6 and her boyfriend sensing danger decided they should leave the bar. She further testified that when they stepped out the men attacked them.
14. According to PW3, there was a security light and she saw the men clearly. She also confirmed they were with her boyfriend’s friend when the attack happened. She told the court that the men took her pouch and Samsung galaxy 4 worth Kshs. 45,000 which she had been sent to by her brother in the USA. According to PW3, the men had attacked her by hitting her and even touching her private parts and the men were led by accused 1.
15. On cross-examination, she stated the gang was led by the 1st accused. She also stated she could easily identify the accused persons since they had gone to where they were seated at the Vineyard bar and spoken to her boyfriend. She also confirmed that she was taking mango juice while her boyfriend and his friend were taking alcohol but were not drunk since they had only taken two drinks. She also confirmed she had seen the accused persons during the attack.
16. Sergeant John Chepnoo (PW4) from Mutarakwa police post was the investigating officer. It was his evidence that on the 19th of January 2017, he was at the post when two complainants (PW1 and PW2) went to report a case of robbery with violence. He told the court that the complainants had complained of being injured in the attack so he advised them to go to the hospital for treatment and return the following day for the P3 forms to be filed.
17. He told the court that the following day PW3 also came to the station to make her report. All the complainants were injured but only PW1 and PW3 had their phones stolen. According to the Investigating officer, the complainants had confirmed they could identify the assailants and even gave a description leading to the arrest of the two accused persons who were positively identified by the 1st complainant. The investigating officer confirmed he knew the 1st accused who was a motorcycle rider operating “boda boda” but did not know accused 2.
18. On cross-examination, he confirmed that the complainants had given a description which led to the arrest of the accused persons. He also confirmed there was no identification parade carried out since two complainants knew the accused persons. He also confirmed he did not try to trace the phones stolen from the complaints. He refuted any knowledge that accused 2 was at Karen for work on the date of the incident.
DEFENCE CASE;
19. Having been found with a case to answer, the appellants were placed on their defence. On his part, the 1st appellant denied ever committing the offence and only narrated how he was arrested on 10th February 2017. He contended that although in court PW1 stated that he knew the assailants who robbed him, in his first report, he did not give any names but merely stated it was a group of motorcyclists. He also faulted PW2 and PW3 for giving evidence which was not in the first report. The 1st accused also faulted the investigating officer for failing to conduct an identification parade.
THE LAW
20. The offence robbery with violence is contained in sections 295 and Section 296 (2) of the Penal Code which provides thus:
Section 295 ;Any person who steals anything and, before or immediately after stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen or retained is guilty of the offence of 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 before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any persons, he shall be sentenced to death.”
21. From the above the ingredients needed to prove the offence of Robbery with violence are;
a. Theft
b. Whether the assailant was armed with any dangerous or offensive weapon or instrument OR Number of assailants
c. Injury or use or threat of use of force
d. Identification
ANALYSIS
22. On the 1st issue, as to whether there was theft, the 1st and 2nd complainants testified that they were robbed of their mobile phones; a Nokia 4200 and a Samsung Galaxy S4. This evidence was not challenged and the court finds that there was a proper analysis of this aspect.
23. On the issue of whether violence was used, it was stated in the charge sheet that the assailants wounded the complainants. It was not stated what weapons were used. In their evidence, all the complainants told the court that the assailants hit them with a blunt object, but they did not see what weapons were used. The Appellant highlighted this aspect in his Appeal, and it is true the aspect of the dangerous weapon is not mentioned in the charge sheet. We must however bear in mind the test under section 296 (2) has 3 aspects to it ;
i. That of being armed with a dangerous or offensive weapon
ii. Whether the assailant is alone or in the company of another or others
iii. Whether the victim sustains any injury as a result of the encounter
24. The tests are disjunctive. In this case, the complaints explained that they were injured by some object that they did not see. That is not fatal in itself, but we note that there was more than one assailant and to be specific they were 6 in number.
25. Lastly, the complainants testified that they had been injured during the robbery. The 1st complainant stated that he had been injured on his forehead, on the hand, leg and ribs, while the 2nd complainant stated that she had been injured so badly she could not even walk. On his part, the 3rd complainant stated that he was injured on the head, shoulder and leg.
26. Although all the complaints confirmed that they had gone on to the hospital and had their P3 forms filed, it is noteworthy that the prosecution case was closed without the doctor who filed the forms being called and as such the P3 forms were not produced. Be as it may, the complainants cannot be faulted for this omission is one the court clearly it was indolence on the part of the doctor who clearly refused to attend court. However, having weighed the evidence in its totality, it is apparently clear that indeed an offence of robbery with violence had been committed.
IDENTIFICATION
27. The trial court analyzed the evidence on identification as hereunder;
“In this case, it is noteworthy that the offence herein was committed at night at around 10 pm. The court must therefore establish if there were favourable conditions to enable positive identification. In this case, the complainants stated that there were security lights and as such they were able to see their assailants.
“The 3 complainants confirmed that prior to the attack, they had spent some time with the assailants at Vineyard bar where even the accused persons engaged them in conversation claiming that the 1st complainant always had “nice things”, a fact attested to by all the complainants. It is noteworthy that the 1st complainant stated that he knew the accused person very well and in fact, in respect to the 2nd accused he put a time frame of about 4 years. The identification by the 1st complainant was therefore visual recognition. On the part of the 2nd complainant, she conceded that she did not know the accused person before. It was however her evidence that the accused persons had engaged her boyfriend who is the 1st complainant while at the vineyard bar and spoken to him during the attack there were security lights so she was able to recognize the assailants at the same men from vineyard bar. On his part, the 3rd complainant stated that he used to see the accused person though he did not know them personally. He however also confirmed that he accused person had approached them when at Vineyard bar and even spoken to the 1st complainant further that afar they left the bar the accused person first attacked PW1 and he saw them clearly since there was fluorescent light.
28. In the case of Maitanyi vs Republic [1986] KLR 198, the Court of Appeal stated that in determining the quality of Identification using light at night, it is at least essential to ascertain the nature of the light available what sort of light, its size and its position relative to the suspect. Without doubt, the intensity of electricity light is enough to ensure a positive identification, especially in cases where a person is not a stranger and is few meters away.
29. I agree with the above analysis that this case was the evidence of all the complainants that they were able to identify the Appellant herein, visually, and since they had spent some time with them at Vineyard bar where they had even spoken. Further, the attack occurred at a place where there was a security light. The appellant in particular was familiar to both PW1 and PW2, its only PW3 who had not seen them before the incident. It was therefore easy for PW1 and PW2 to identify their assailants where there is a good source of light like electricity.
30. In this case, it iss noteworthy that the 3 complainants collaborated each other’s evidence. In fact, PW2 clearly stated that he saw PW1 getting attacked since PW1’s attack preceded his. The court is satisfied that a proper analysis of the evidence was done on this aspect.
THE SPECIFIC GROUNDS OF APPEAL
31. The court notes that the trial court analyzed both the prosecution evidence and the defence raised. The Hon Magistrate cited the case of R. vs Sukha s/o Wazir Singh & Others [ 1993] 6 EACA 145 the former Court of Appeal for Eastern Africa upheld a decision of the High Court in which it was stated: “If a person is accused of anything and his defence is an alibi , he should bring forward that alibi as soon as he can because , firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.”
32. In this case the defence came at the 11th hour and in any case, I agree it did not rebut the weighty evidence by the state.
33. The court also notes that both accused persons placed heavy reliance on the failure by the investigating offer to conduct an identification parade. The Court of Appeal in the case of James Tinega Omwenga –vs– R Criminal Appeal No. 59 of 2011 [2014] eKLR pronounced itself as follows:- “ …. the purpose of an identification parade is to test the correctness of the identification of an accused person by a witness who did not know him prior to the incident”.
34. In this case the complainants knew the appellant prior to the incident. In fact, PW1 stated that had known the appellant for a period of over 4 years which is relatively long period of time. Further, the investigating officer confirmed that during the report, the complainants clearly stated that they knew their assailants and even gave a description which led to the arrest of the appellants herein.
35. The court has carefully scrutinized the evidence of the three witnesses and is in agreement the finding in the case of Erick Onyango ONdeng’ vs Republic Nairobi Criminal Appeal No. 5 of 2013 that “it is not every contradiction that warrants rejection of evidence. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. In this case, the contradictions if any were minor and did not affect the charges in a material way.
36. From the foregoing, I am satisfied that all the elements of the offence were proved, the magistrate appreciated the principles and applied them correctly. The defence was also considered and the conviction is safe and there is no need to disturb the same.
37. As regards the sentence, the offence calls for a death sentence. The trial court considered the mitigation but also noted that the offence was prevalent in the area. Accordingly, the court will again not interfere with the lawful sentence.
38. The upshot is that the appeal fails on all grounds. It is hereby dismissed.
39. It is so ordered.
Dated, signed and delivered virtually on this …30th…. day of July, 2024. Judgment delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:-
APPELLANT present
For the Appellant
For the Respondent. Ms Maina
Court Assistant - BEBORA