(Being an appeal from the conviction and sentence delivered on 22/12/2022 by Hon. Cheruto, C. Kipkorir PM in Kerugoya Magistrates Court Criminal Case No. E938 of 2021)
1. The appellant was charged with two counts of the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on 30th September 2021 at Kerugoya town within Kirinyaga County, jointly with others not before court while armed with dangerous weapons to wit knives and rungus robbed two persons of their respective items and at the time of such robbery used actual violence to the them. Particulars of the victims, their losses to the appellant and the violence meted out were:
i. Count I: Grace Wangeci Nguri robbed of cash KShs 162,840/=, one mobile phone, Samsung make, serial number 358577/10/353063/5 valued at KShs 25,000/=, an umbrella valued at KShs 1,500/= and Safaricom credit voucher of value KShs 1,000/=.
ii. Count II: Ann Nyaguthii Wachira robbed of cash KShs 5,275/=, one mobile phone, Samsung make A02, serial number 355387/99/369743/4 valued at KShs 13,000/=.
2. The appellant was convicted and sentenced to serve 20 years imprisonment on each count by the trial court and the sentences ordered to run concurrently. He was aggrieved by the decision and preferred this appeal through his petition dated January 2023 raising the following grounds:
i. the learned trial magistrate erred in law and fact by failing to consider that the identification parade was not done fairly.
ii. the learned trial magistrate erred in law and fact by failing to consider that no description of the suspects was given to the police when the matter was reported.
iii. the learned trial magistrate erred in law and fact by failing to consider that the appellant was denied a chance to call his witnesses.
iv. the learned trial magistrate failed to consider the evidence adduced by the prosecution was not enough to prove the case beyond a reasonable doubt.
v. the learned trial magistrate erred in law and fact by imposing a harsh and excessive sentence without considering the appellant’s fundamental rights and freedoms enshrined in the Constitution.
vi. the learned trial magistrate failed to consider that the investigations done were shoddy and unfounded.
vii. the learned trial magistrate erred in law and fact by failing to consider the appellant’s defence and mitigating factors.
3. The appeal was disposed of by way of written submissions filed by the appellant and the learned counsel for the respondent.
4. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence adduced before the trial court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
5. The prosecution called six witnesses to support its case.
6. In summary the prosecution’s evidence was that on the evening of 30/9/2021, the appellant, together with the driver and another man while in a vehicle, make Noah, robbed the two complainants of their items as they assaulted them. The appellant, posing as the conductor of the vehicle which was public service vehicle, picked the two complainants as passengers along the way in Kerugoya town coming from work and going home towards Kagumo direction. PW 1 Grace Wangeci Nguru who worked as an auditor with the Kerugoya County Government, was the first to board the vehicle. PW 2, Anne Nyaguthii Wachira worked at the Kerugoya County General hospital and was the second person to board the vehicle. The vehicle driver made various stops along the way as if to pick other passengers but it appears no others boarded the vehicle. The two ladies were asked for fare at around Kibingo area and they paid.
7. Along the way, the driver commanded the two other men saying, “commando anza kazi,” translated to commander, start work. The music in the vehicle was on very high volume. The appellant and the other man who was not driving turned against the two ladies, jumping to where they were seated towards the back of the vehicle. PW 1 screamed and the appellant punched her four times in the back. Each held one of the complainants, pushed them to the floor and pulled their masks into their eyes to cover them. The driver asked the two men to make the phones available. While armed with a club, knife and bottle they robbed them of their personal items as outlined in the particulars of the respective counts above and also assaulted them.
8. PW 1 had a Samsung A30 S phone, bluish in colour purchased at KShs 30,000/= and the driver took it. She provided the receipt for purchase (Exh. 1) to the police. She was asked for the PIN numbers for her bank accounts and the phone and she gave them out. The robbers took her national identification voucher, Equity bank and Fortune bank vouchers, a small umbrella, KShs 4,000/= cash that was in her handbag and an unused Safaricom airtime scratch card or voucher for KShs 1,000/=.
9. PW 1 was injured on the hand, back and leg which was swollen. She received treatment at Kerugoya County Referral hospital as per the treatment notes – Exh. 3 and she was examined and a P3 form was completed afterwards.
10. Afterwards, PW 1 obtained her bank and Safaricom statements which were produced in court as exhibits 4, 5 and 6. The statements showed that withdrawal of money transactions had been done on her accounts with Equity bank and Fortune Sacco then sent to her Safaricom mobile phone line account number 0722 459 459 on 30/9/2021 between 5.00 p.m. and 7.02 p.m. KShs 5,200/= was also sent from the Safaricom mobile phone line No. 0723 108 303 of Ann Nyaguthii Wachira, PW 2 and sent to PW 1’s number. The money from her Safaricom money transfer wallet was withdrawn through M-Pesa at Cooperative bank ATM and sent to phone number 0720 695 057 in the name Caliphus Musumba Oduor.
11. PW 2 said that after the driver commanded the other two to start work, the two other men jumped to where they were, held her by the neck and sat on her thighs. She saw a rungu, knife and a bottle or gun. Their eyes were closed. She was asked for her PIN. PW 2 said she lost her Samsung mobile phone and KShs 5,270/= in cash. She produced a receipt for the purchase of her Samsung phone (Exh. 9). She also produced her Safaricome M-Pesa statement for line number 0725 472 310 and 0725 472 303 which showed that KShs 5,200/= had been withdrawn from her Safaricom mobile phone money wallet.
12. The robbers then dumped each of them separately along the way.
13. Each of the complainants made her way to Kerugoya police station and reported the robbery. PW 1 had an unused Safaricom airtime voucher serial number 21051505000121968 for KShs 1,000/= which was among the items stolen. The airtime voucher was later traced through its serial number and was found by PW 5, Sgt Henry Kathurima Mwongo of DCI and attached to Safaricom Security department as a Data Analyst to have been loaded into the appellant’s Simon Mwangi of identification voucher number 25768761 phone line number 0769 964 305. The appellant was identified by both PW 1 and PW 2 at an identification parade conducted on 25/1/2021 by PW 4 IP Hasena Pokina of Kerugoya police station. PW 3, Hezron Maina Macharia, clinical officer at Kerugoya County Referral Hospital produced P3 forms completed for PW 1 and PW 2 at the hospital when they visited there for medical attention following the assault during the robbery. PW 6, IP Joel Obum was the investigating officer.
14. The appellant gave sworn evidence in defence. He did not call a witness. He denied that he committed the offence. He said he is a scrap metal dealer. He said he collected the scratch voucher from a vehicle in which he was travelling on 30/9/2021 from Kimbimbi to Makutano. He was on his way to Nairobi. The voucher was unused and he asked the driver if he could use it and he agreed. He used it in his phone. He informed the police how he came by it but they did not believe him. He denied that he was in the same vehicle from which the complainants were robbed.
15. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt. She dismissed the appellant’s defence and convicted him accordingly.
16. In arriving at her decision, the learned trial magistrate remarked that the appellant did not make available any witness to corroborate his evidence. That direction was erroneous. An accused person is under no duty to offer evidence in defence to rebut the prosecution’s case or to prove his innocence. The legal burden of proof in a criminal trial rests on the prosecution throughout. It has to prove its case beyond a reasonable doubt. That is the essence of the right to remain silent even when the court has found that he has a case to answer.
17. The trial court found the defence by the appellant not persuasive enough to displace the evidence tendered by the prosecution and create a doubt in its mind. It found the appellant guilty of the offence on the two counts and convicted him accordingly.
18. The appellant argued his appeal on three grounds namely legal representation, identification and sentence.
19. His first ground of appeal was on legal representation. This ground of appeal is not contained in the memorandum of appeal and neither did he file a supplementary memorandum of appeal to include this ground. The respondent has therefore not been given an opportunity to respond to this ground of appeal. All the same, since the issue touches on the appellant’s right to a fair trial as provided for in the Constitution, I will consider it.
20. In arguing this ground the appellant submitted that there was a miscarriage of justice in the trial court proceeding with the case without providing him with a pro bono advocate at the State expense and without being warned. First, considering that the charge he was facing was for a capital offence. He cited the case of David Njoroge Macharia v Republic [2011] KECA 406 (KLR) by the Court of Appeal to the effect that “… in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense.” Secondly, that there were professionals witnesses namely PW 5 and PW 6 who gave evidence and who required a fellow professional to decipher the complex evidence they adduced which he could not fathom or understand. Therefore, not being provided with a pro bono advocate compromised his ability to conduct his case effectively and thereby undermined his right to fair trial. He submitted that in the circumstances he was entitled to an acquittal but later asked the court to order a retrial pointing out that most of the witnesses for the prosecution were police officers and other members from the same community.
21. On the issue of identification, the appellant submits that no prior description of him was made before his arrest and both PW 1 and PW 2 confirmed this in their respective testimonies.
22. The appellant also submitted that the prosecution witnesses’ evidence was full of discrepancies, anomalies and inconsistencies capable of unsettling the case and turning it into his favour.
23. On sentence, the appellant does not seem to have much to complain about because although he submits that the court should be left to have its discretion in sentencing, the position is that in fact, he was not sentenced to the mandatory death sentence under section 296(2) of the Penal Code and so the court exercised its discretion after taking his mitigation into account. His appeal on that ground lacks any merit.
24. He thus prays that he be accorded the benefit of doubt as this case, according to him was far from one that can be said to have been proved beyond a reasonable doubt.
25. Learned counsel for the respondent did not submit on the ground of failure by the trial court to observe the appellant’s right at the trial thereby denying him a fair trial.
26. Learned counsel for the respondent submits that there was evidence that the appellant was properly identified by PW 1 and PW 2 and that together with the evidence of PW 6 they nailed the appellant at the scene of crime. The respondent submits that the appellant was accorded an opportunity to call his witnesses but he did not.
27. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellant by the trial court.
28. I have considered the grounds in support of the appeal, submissions by the appellant and the respondent and the judgment of the trial court. The issues upon which this appeal rests are 1) alleged breaches of the appellant’s rights to a fair trial, particularly, legal representation. 2) whether or not there was proper identification of the appellant as the robber and 3) whether on the whole the offence of robbery under section 296(2) was proved against the appellant beyond a reasonable doubt.
29. Starting with the issue of breach of the appellant’s constitutional rights to a fair trial, I note that indeed, the trial court did not inform the appellant of his rights under Articles 50(2)(g) and (h) at the start of the case when the appellant was first arraigned and before taking plea. The said articles provide as follows:
“50(2) Every accused person has the right to a fair trial, which includes the right—
…
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
…”
30. In each case, the constitution declares that he has to be informed of the right promptly.
31. The Court of Appeal has had occasion to consider the issue of breach of an accused person’s right to a fair trial in several cases. In the case of Katana & another v Republic [2022] KECA 1160 (KLR) it said thus:
“… the record of the trial court shows that the appellants indicated they were ready to proceed with the trial, actively participated in the trial and cross-examined all the witnesses, and it is not evident that they suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated.”
32. Similarly, in the present case, the record shows that at every hearing the court inquired of the appellant whether he was ready to proceed and he agreed and the proceedings went on. He participated in the proceedings by being present and listening to the witnesses testify after which he cross-examined them. On the first occasion when PW 1 was testifying, and he found that he did not have some material from the prosecution, the appellant raised the issue with the court and the court addressed it by asking the prosecution to provide the documents. The witness was stepped down and the prosecution counsel supplied the documents the same day. The appellant acknowledged receipt of the documents. There was no indication that he was unable to decipher the data in any of the documents or that he required any assistance to understand the evidence contained therein, as per his submission. On a second occasion, during mention of the case he indicated that he had not been supplied with the covering report and the court ordered that the same be supplied which was promptly done before the case was proceeded for hearing on different date. There was also no indication that he was incapacitated in conducting his defence. He ably conducted his cross-examination
33. 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.
34. The next issue for consideration is whether or not the appellant was properly identified by the witnesses and therefore whether the learned trial magistrate reached a correct finding on that issue.
35. In the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR) the Court of Appeal stated thus regarding identification:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. The surrounding circumstances must be considered (see R. v.Turnbull [1976] 63 Cr. App. R.132). Among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all.”
36. It is the appellant’s contention that PW 1 and PW 2 who identified him had not given his description to the police at all before his arrest and therefore his identification was not foolproof.
37. In this case, I note that the appellant was arrested after about three months of the incident. However, PW 1 and PW 2 were each emphatic that she did identify the appellant properly during the commission of the offence. The complainants PW 1 and PW 2 gave evidence that each of them boarded the vehicle while it was daylight. The appellant was at the door and he was the one who ushered each of them into the vehicle. Each of them identified him as having a bald patch on his head. Each of them said that when he ushered her into the vehicle, the appellant was not wearing his face mask. He only wore it when they started robbing them. In that case, each of them had a good opportunity to see him. The vehicle was moving slowly as the robbers pretended to seek for more passengers along the way to board. The two complainants therefore had sufficient opportunity to see him by being close to him in the vehicle and the time the vehicle was moving slowly on the road. Although they did not give his description to the police prior, each of them was emphatic that when asked by the police whether she could identify the robbers, she agreed, with PW 1 saying that she could identify the appellant who was the conductor and the driver but not the other man whom she did not see properly. I am satisfied that the conditions for the appellant’s proper identification were conducive. Each of the complainants later identified him at an identification parade and there is no complaint by the appellant that the ID parade was not well conducted.
38. I therefore find that the ground of appeal of lack of identification of the appellant has no basis and the same is dismissed. I am satisfied that he was properly identified by not one but two witnesses.
39. It is the appellant’s contention that the offence of robbery with violence was not proved against him beyond a reasonable doubt. We now need to consider the ingredients to ascertain whether the offence was proved and therefore whether the learned trial magistrate reached a proper finding.
40. Sections 295 and 296(2) of the Penal Code under which the appellant was charged 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.”
41. As provided for under section 295 PC and explained in the decision above, in an offence of robbery, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2). The element of theft will be considered later in this decision.
42. 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.
43. The present case is hinged on all the three elements of the offence, that the appellant was in company of two other people that is, they were more than one; second that they used violence upon the complainants because the two men each pinned the complainants to the floor by sitting on them and thereby assaulted them, and third, they were armed with dangerous weapons namely a knife and rungu.
44. Upon analyzing the evidence, the learned trial magistrate disbelieved the story tendered by the appellant and found that the prosecution had proved its case against him beyond a reasonable doubt and convicted him accordingly.
45. Contrary to the submissions by the appellant that the prosecution evidence had inconsistencies and contradictions, the evidence of PW 1 and PW 2 of what transpired while they were held hostage in the vehicle was consistent and corroborated each other. The complainants’ evidence of having been injured was corroborated by PW 3 Hezron Maina Macharia the clinical officer who confirmed that each of them had sustained injuries due to the violence meted upon them. The degree of injury in each case was assessed as harm and their P3 forms were produced as exhibits.
46. I am therefore satisfied as was the learned trial magistrate that the appellant was in company of two other people, they were in possession of dangerous weapons and they inflicted violence upon the complainants on the material evening.
47. The final element is proof of theft. The Court of Appeal considered a similar scenario in the case of Erick Amwata Onono v Republic [2016] KECA 137 (KLR):
“To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2) …”
48. Both complainants PW 1 and PW 2 gave evidence of what each of them was robbed of while in the vehicle. PW 1 said she was robbed of a mobile phone whose details and even purchase she provided. She was robbed of money whereby the same was being transferred from her bank accounts then transferred to her phone then to a different phone. Evidence of those transactions having been done was produced before the trial court. PW 2 gave evidence that she was robbed of her money and mobile phone. She also produced evidence of her purchase of her mobile phone. The learned trial magistrate found that theft was proved. That is a finding of fact and I have no reason to depart from it. I am satisfied and find that the element of theft was proved.
49. Besides the fact that the appellant was positively identified by PW 1 amd PW 2 as one of the robbers, there was evidence that the appellant was found to have been in possession of the Safaricom airtime scratch card or voucher which was stolen from PW 1 during the robbery. The case against the appellant was therefore supported by the doctrine of recent possession.
50. The elements of the doctrine of recent possession are explained by the Court of Appeal, in Erick Otieno Arum v Republic [2006] KECA 385 (KLR) which summarized the essential elements of the doctrine of recent possession as follows:
“In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect; secondly, that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”
51. The appellant admitted that he had used the airtime voucher, a confirmation that he was in possession thereof. PW 1 explained that she had been issued with this scratch voucher or airtime voucher as part of her employment package where they are issued with airtime. She was issued with two airtime vouchers, each with two PINs making them four. The vouchers were in a polythene wrapper bearing various details among them that they were from Safaricom and the airtime vouchers with PINS starting from 21051805000121968 to 21051805000121971 making four of them. PW 1 provided the police with the wrapper (Exh. 8) which bore these details. PW 1 said that she had utilized two of the vouchers in her phone number o722 459 459 and she had given one to her daughter who loaded it in her phone number 0707 511 103. That left one voucher unutilized. There was evidence from Safaricom (Exh. 13) that indeed these two numbers had loaded the airtime from the three voucher numbers and the remaining voucher No. 21051805000121968 was used in the appellant’s Safaricom line number 0769 964 305. I am satisfied that there was evidence that the airtime voucher No. 21051805000121968 belonged to PW 1. The appellant conceded that indeed he had loaded his Safaricom mobile phone line with the airtime from that voucher. I am satisfied that all of the elements of recent possession were proved by the prosecution.
52. The doctrine of recent possession having been established by the prosecution, the onus was upon the appellant to provide a reasonable explanation of his possession of the scratch voucher. The evidential burden to provide a plausible explanation was upon him. This burden being evidential only, it does not relieve the prosecution from proving its case to the required standard. That explanation need only be a plausible as explained by the Court of Appeal in the case of Paul Mwita Robi V Republic [2010] Keca 381 (KLR).
53. The appellant explained that he had collected the scratch voucher in a vehicle he boarded from Kimbimbi to Makutano on his way to Nairobi. That the same had not been used and he asked the driver if he could use it and the driver accepted. The learned trial magistrate did not find that explanation plausible and I agree with her. A scratch voucher is a tiny item. That one can collect it from the floor of a public service vehicle unnoticed and then bother to ask the driver whether there was someone claiming it is indeed implausible. The appellant had the scratch voucher so soon after it was stolen from PW 1. PW 1 and PW 2 identified him as the conductor who ushered them into the vehicle in which they were robbed.
54. There is further evidence from the call data records from Safaricom that the appellant’s number 0769 964 305 was within Kiangai area around 16:14:35 Hours on 30/9/2021 just around the time PW 1 said she boarded the vehicle in which he was, then at Kagumo, where PW 1 said was her destination, on the same day at 16:26:07 Hours and then Mwea Kigesa afterwards. All these are areas within easy reach of Kerugoya where the complainants said they were picked before being driven around for long and eventually being abandoned, again just within the Kerygoya area.
55. I can only find that having found the unused scratch voucher as one of the items they had robbed PW 1 of, he was excited that it was not used and so he used it to top up the credit in his phone.
56. I find that the appellant’s explanation of how he came to have the scratch voucher recently stolen from PW 1 was implausible and must be rejected. His defence was therefore incapable of challenging the strong evidence tendered by the prosecution that he was one of the robbers and it must be rejected.
57. Consequently, I find that the conviction of the appel
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1. The appellant was charged with two counts of the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on 30th September 2021 at Kerugoya town within Kirinyaga County, jointly with others not before court while armed with dangerous weapons to wit knives and rungus robbed two persons of their respective items and at the time of such robbery used actual violence to the them. Particulars of the victims, their losses to the appellant and the violence meted out were:
i. Count I: Grace Wangeci Nguri robbed of cash KShs 162,840/=, one mobile phone, Samsung make, serial number 358577/10/353063/5 valued at KShs 25,000/=, an umbrella valued at KShs 1,500/= and Safaricom credit voucher of value KShs 1,000/=.
ii. Count II: Ann Nyaguthii Wachira robbed of cash KShs 5,275/=, one mobile phone, Samsung make A02, serial number 355387/99/369743/4 valued at KShs 13,000/=.
2. The appellant was convicted and sentenced to serve 20 years imprisonment on each count by the trial court and the sentences ordered to run concurrently. He was aggrieved by the decision and preferred this appeal through his petition dated January 2023 raising the following grounds:
i. the learned trial magistrate erred in law and fact by failing to consider that the identification parade was not done fairly.
ii. the learned trial magistrate erred in law and fact by failing to consider that no description of the suspects was given to the police when the matter was reported.
iii. the learned trial magistrate erred in law and fact by failing to consider that the appellant was denied a chance to call his witnesses.
iv. the learned trial magistrate failed to consider the evidence adduced by the prosecution was not enough to prove the case beyond a reasonable doubt.
v. the learned trial magistrate erred in law and fact by imposing a harsh and excessive sentence without considering the appellant’s fundamental rights and freedoms enshrined in the Constitution.
vi. the learned trial magistrate failed to consider that the investigations done were shoddy and unfounded.
vii. the learned trial magistrate erred in law and fact by failing to consider the appellant’s defence and mitigating factors.
3. The appeal was disposed of by way of written submissions filed by the appellant and the learned counsel for the respondent.
4. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence adduced before the trial court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
5. The prosecution called six witnesses to support its case.
6. In summary the prosecution’s evidence was that on the evening of 30/9/2021, the appellant, together with the driver and another man while in a vehicle, make Noah, robbed the two complainants of their items as they assaulted them. The appellant, posing as the conductor of the vehicle which was public service vehicle, picked the two complainants as passengers along the way in Kerugoya town coming from work and going home towards Kagumo direction. PW 1 Grace Wangeci Nguru who worked as an auditor with the Kerugoya County Government, was the first to board the vehicle. PW 2, Anne Nyaguthii Wachira worked at the Kerugoya County General hospital and was the second person to board the vehicle. The vehicle driver made various stops along the way as if to pick other passengers but it appears no others boarded the vehicle. The two ladies were asked for fare at around Kibingo area and they paid.
7. Along the way, the driver commanded the two other men saying, “commando anza kazi,” translated to commander, start work. The music in the vehicle was on very high volume. The appellant and the other man who was not driving turned against the two ladies, jumping to where they were seated towards the back of the vehicle. PW 1 screamed and the appellant punched her four times in the back. Each held one of the complainants, pushed them to the floor and pulled their masks into their eyes to cover them. The driver asked the two men to make the phones available. While armed with a club, knife and bottle they robbed them of their personal items as outlined in the particulars of the respective counts above and also assaulted them.
8. PW 1 had a Samsung A30 S phone, bluish in colour purchased at KShs 30,000/= and the driver took it. She provided the receipt for purchase (Exh. 1) to the police. She was asked for the PIN numbers for her bank accounts and the phone and she gave them out. The robbers took her national identification voucher, Equity bank and Fortune bank vouchers, a small umbrella, KShs 4,000/= cash that was in her handbag and an unused Safaricom airtime scratch card or voucher for KShs 1,000/=.
9. PW 1 was injured on the hand, back and leg which was swollen. She received treatment at Kerugoya County Referral hospital as per the treatment notes – Exh. 3 and she was examined and a P3 form was completed afterwards.
10. Afterwards, PW 1 obtained her bank and Safaricom statements which were produced in court as exhibits 4, 5 and 6. The statements showed that withdrawal of money transactions had been done on her accounts with Equity bank and Fortune Sacco then sent to her Safaricom mobile phone line account number 0722 459 459 on 30/9/2021 between 5.00 p.m. and 7.02 p.m. KShs 5,200/= was also sent from the Safaricom mobile phone line No. 0723 108 303 of Ann Nyaguthii Wachira, PW 2 and sent to PW 1’s number. The money from her Safaricom money transfer wallet was withdrawn through M-Pesa at Cooperative bank ATM and sent to phone number 0720 695 057 in the name Caliphus Musumba Oduor.
11. PW 2 said that after the driver commanded the other two to start work, the two other men jumped to where they were, held her by the neck and sat on her thighs. She saw a rungu, knife and a bottle or gun. Their eyes were closed. She was asked for her PIN. PW 2 said she lost her Samsung mobile phone and KShs 5,270/= in cash. She produced a receipt for the purchase of her Samsung phone (Exh. 9). She also produced her Safaricome M-Pesa statement for line number 0725 472 310 and 0725 472 303 which showed that KShs 5,200/= had been withdrawn from her Safaricom mobile phone money wallet.
12. The robbers then dumped each of them separately along the way.
13. Each of the complainants made her way to Kerugoya police station and reported the robbery. PW 1 had an unused Safaricom airtime voucher serial number 21051505000121968 for KShs 1,000/= which was among the items stolen. The airtime voucher was later traced through its serial number and was found by PW 5, Sgt Henry Kathurima Mwongo of DCI and attached to Safaricom Security department as a Data Analyst to have been loaded into the appellant’s Simon Mwangi of identification voucher number 25768761 phone line number 0769 964 305. The appellant was identified by both PW 1 and PW 2 at an identification parade conducted on 25/1/2021 by PW 4 IP Hasena Pokina of Kerugoya police station. PW 3, Hezron Maina Macharia, clinical officer at Kerugoya County Referral Hospital produced P3 forms completed for PW 1 and PW 2 at the hospital when they visited there for medical attention following the assault during the robbery. PW 6, IP Joel Obum was the investigating officer.
14. The appellant gave sworn evidence in defence. He did not call a witness. He denied that he committed the offence. He said he is a scrap metal dealer. He said he collected the scratch voucher from a vehicle in which he was travelling on 30/9/2021 from Kimbimbi to Makutano. He was on his way to Nairobi. The voucher was unused and he asked the driver if he could use it and he agreed. He used it in his phone. He informed the police how he came by it but they did not believe him. He denied that he was in the same vehicle from which the complainants were robbed.
15. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt. She dismissed the appellant’s defence and convicted him accordingly.
16. In arriving at her decision, the learned trial magistrate remarked that the appellant did not make available any witness to corroborate his evidence. That direction was erroneous. An accused person is under no duty to offer evidence in defence to rebut the prosecution’s case or to prove his innocence. The legal burden of proof in a criminal trial rests on the prosecution throughout. It has to prove its case beyond a reasonable doubt. That is the essence of the right to remain silent even when the court has found that he has a case to answer.
17. The trial court found the defence by the appellant not persuasive enough to displace the evidence tendered by the prosecution and create a doubt in its mind. It found the appellant guilty of the offence on the two counts and convicted him accordingly.
18. The appellant argued his appeal on three grounds namely legal representation, identification and sentence.
19. His first ground of appeal was on legal representation. This ground of appeal is not contained in the memorandum of appeal and neither did he file a supplementary memorandum of appeal to include this ground. The respondent has therefore not been given an opportunity to respond to this ground of appeal. All the same, since the issue touches on the appellant’s right to a fair trial as provided for in the Constitution, I will consider it.
20. In arguing this ground the appellant submitted that there was a miscarriage of justice in the trial court proceeding with the case without providing him with a pro bono advocate at the State expense and without being warned. First, considering that the charge he was facing was for a capital offence. He cited the case of David Njoroge Macharia v Republic [2011] KECA 406 (KLR) by the Court of Appeal to the effect that “… in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense.” Secondly, that there were professionals witnesses namely PW 5 and PW 6 who gave evidence and who required a fellow professional to decipher the complex evidence they adduced which he could not fathom or understand. Therefore, not being provided with a pro bono advocate compromised his ability to conduct his case effectively and thereby undermined his right to fair trial. He submitted that in the circumstances he was entitled to an acquittal but later asked the court to order a retrial pointing out that most of the witnesses for the prosecution were police officers and other members from the same community.
21. On the issue of identification, the appellant submits that no prior description of him was made before his arrest and both PW 1 and PW 2 confirmed this in their respective testimonies.
22. The appellant also submitted that the prosecution witnesses’ evidence was full of discrepancies, anomalies and inconsistencies capable of unsettling the case and turning it into his favour.
23. On sentence, the appellant does not seem to have much to complain about because although he submits that the court should be left to have its discretion in sentencing, the position is that in fact, he was not sentenced to the mandatory death sentence under section 296(2) of the Penal Code and so the court exercised its discretion after taking his mitigation into account. His appeal on that ground lacks any merit.
24. He thus prays that he be accorded the benefit of doubt as this case, according to him was far from one that can be said to have been proved beyond a reasonable doubt.
25. Learned counsel for the respondent did not submit on the ground of failure by the trial court to observe the appellant’s right at the trial thereby denying him a fair trial.
26. Learned counsel for the respondent submits that there was evidence that the appellant was properly identified by PW 1 and PW 2 and that together with the evidence of PW 6 they nailed the appellant at the scene of crime. The respondent submits that the appellant was accorded an opportunity to call his witnesses but he did not.
27. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellant by the trial court.
28. I have considered the grounds in support of the appeal, submissions by the appellant and the respondent and the judgment of the trial court. The issues upon which this appeal rests are 1) alleged breaches of the appellant’s rights to a fair trial, particularly, legal representation. 2) whether or not there was proper identification of the appellant as the robber and 3) whether on the whole the offence of robbery under section 296(2) was proved against the appellant beyond a reasonable doubt.
29. Starting with the issue of breach of the appellant’s constitutional rights to a fair trial, I note that indeed, the trial court did not inform the appellant of his rights under Articles 50(2)(g) and (h) at the start of the case when the appellant was first arraigned and before taking plea. The said articles provide as follows:
“50(2) Every accused person has the right to a fair trial, which includes the right—
…
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
…”
30. In each case, the constitution declares that he has to be informed of the right promptly.
31. The Court of Appeal has had occasion to consider the issue of breach of an accused person’s right to a fair trial in several cases. In the case of Katana & another v Republic [2022] KECA 1160 (KLR) it said thus:
“… the record of the trial court shows that the appellants indicated they were ready to proceed with the trial, actively participated in the trial and cross-examined all the witnesses, and it is not evident that they suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated.”
32. Similarly, in the present case, the record shows that at every hearing the court inquired of the appellant whether he was ready to proceed and he agreed and the proceedings went on. He participated in the proceedings by being present and listening to the witnesses testify after which he cross-examined them. On the first occasion when PW 1 was testifying, and he found that he did not have some material from the prosecution, the appellant raised the issue with the court and the court addressed it by asking the prosecution to provide the documents. The witness was stepped down and the prosecution counsel supplied the documents the same day. The appellant acknowledged receipt of the documents. There was no indication that he was unable to decipher the data in any of the documents or that he required any assistance to understand the evidence contained therein, as per his submission. On a second occasion, during mention of the case he indicated that he had not been supplied with the covering report and the court ordered that the same be supplied which was promptly done before the case was proceeded for hearing on different date. There was also no indication that he was incapacitated in conducting his defence. He ably conducted his cross-examination
33. 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.
34. The next issue for consideration is whether or not the appellant was properly identified by the witnesses and therefore whether the learned trial magistrate reached a correct finding on that issue.
35. In the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR) the Court of Appeal stated thus regarding identification:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. The surrounding circumstances must be considered (see R. v.Turnbull [1976] 63 Cr. App. R.132). Among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all.”
36. It is the appellant’s contention that PW 1 and PW 2 who identified him had not given his description to the police at all before his arrest and therefore his identification was not foolproof.
37. In this case, I note that the appellant was arrested after about three months of the incident. However, PW 1 and PW 2 were each emphatic that she did identify the appellant properly during the commission of the offence. The complainants PW 1 and PW 2 gave evidence that each of them boarded the vehicle while it was daylight. The appellant was at the door and he was the one who ushered each of them into the vehicle. Each of them identified him as having a bald patch on his head. Each of them said that when he ushered her into the vehicle, the appellant was not wearing his face mask. He only wore it when they started robbing them. In that case, each of them had a good opportunity to see him. The vehicle was moving slowly as the robbers pretended to seek for more passengers along the way to board. The two complainants therefore had sufficient opportunity to see him by being close to him in the vehicle and the time the vehicle was moving slowly on the road. Although they did not give his description to the police prior, each of them was emphatic that when asked by the police whether she could identify the robbers, she agreed, with PW 1 saying that she could identify the appellant who was the conductor and the driver but not the other man whom she did not see properly. I am satisfied that the conditions for the appellant’s proper identification were conducive. Each of the complainants later identified him at an identification parade and there is no complaint by the appellant that the ID parade was not well conducted.
38. I therefore find that the ground of appeal of lack of identification of the appellant has no basis and the same is dismissed. I am satisfied that he was properly identified by not one but two witnesses.
39. It is the appellant’s contention that the offence of robbery with violence was not proved against him beyond a reasonable doubt. We now need to consider the ingredients to ascertain whether the offence was proved and therefore whether the learned trial magistrate reached a proper finding.
40. Sections 295 and 296(2) of the Penal Code under which the appellant was charged 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.”
41. As provided for under section 295 PC and explained in the decision above, in an offence of robbery, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2). The element of theft will be considered later in this decision.
42. 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.
43. The present case is hinged on all the three elements of the offence, that the appellant was in company of two other people that is, they were more than one; second that they used violence upon the complainants because the two men each pinned the complainants to the floor by sitting on them and thereby assaulted them, and third, they were armed with dangerous weapons namely a knife and rungu.
44. Upon analyzing the evidence, the learned trial magistrate disbelieved the story tendered by the appellant and found that the prosecution had proved its case against him beyond a reasonable doubt and convicted him accordingly.
45. Contrary to the submissions by the appellant that the prosecution evidence had inconsistencies and contradictions, the evidence of PW 1 and PW 2 of what transpired while they were held hostage in the vehicle was consistent and corroborated each other. The complainants’ evidence of having been injured was corroborated by PW 3 Hezron Maina Macharia the clinical officer who confirmed that each of them had sustained injuries due to the violence meted upon them. The degree of injury in each case was assessed as harm and their P3 forms were produced as exhibits.
46. I am therefore satisfied as was the learned trial magistrate that the appellant was in company of two other people, they were in possession of dangerous weapons and they inflicted violence upon the complainants on the material evening.
47. The final element is proof of theft. The Court of Appeal considered a similar scenario in the case of Erick Amwata Onono v Republic [2016] KECA 137 (KLR):
“To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2) …”
48. Both complainants PW 1 and PW 2 gave evidence of what each of them was robbed of while in the vehicle. PW 1 said she was robbed of a mobile phone whose details and even purchase she provided. She was robbed of money whereby the same was being transferred from her bank accounts then transferred to her phone then to a different phone. Evidence of those transactions having been done was produced before the trial court. PW 2 gave evidence that she was robbed of her money and mobile phone. She also produced evidence of her purchase of her mobile phone. The learned trial magistrate found that theft was proved. That is a finding of fact and I have no reason to depart from it. I am satisfied and find that the element of theft was proved.
49. Besides the fact that the appellant was positively identified by PW 1 amd PW 2 as one of the robbers, there was evidence that the appellant was found to have been in possession of the Safaricom airtime scratch card or voucher which was stolen from PW 1 during the robbery. The case against the appellant was therefore supported by the doctrine of recent possession.
50. The elements of the doctrine of recent possession are explained by the Court of Appeal, in Erick Otieno Arum v Republic [2006] KECA 385 (KLR) which summarized the essential elements of the doctrine of recent possession as follows:
“In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect; secondly, that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”
51. The appellant admitted that he had used the airtime voucher, a confirmation that he was in possession thereof. PW 1 explained that she had been issued with this scratch voucher or airtime voucher as part of her employment package where they are issued with airtime. She was issued with two airtime vouchers, each with two PINs making them four. The vouchers were in a polythene wrapper bearing various details among them that they were from Safaricom and the airtime vouchers with PINS starting from 21051805000121968 to 21051805000121971 making four of them. PW 1 provided the police with the wrapper (Exh. 8) which bore these details. PW 1 said that she had utilized two of the vouchers in her phone number o722 459 459 and she had given one to her daughter who loaded it in her phone number 0707 511 103. That left one voucher unutilized. There was evidence from Safaricom (Exh. 13) that indeed these two numbers had loaded the airtime from the three voucher numbers and the remaining voucher No. 21051805000121968 was used in the appellant’s Safaricom line number 0769 964 305. I am satisfied that there was evidence that the airtime voucher No. 21051805000121968 belonged to PW 1. The appellant conceded that indeed he had loaded his Safaricom mobile phone line with the airtime from that voucher. I am satisfied that all of the elements of recent possession were proved by the prosecution.
52. The doctrine of recent possession having been established by the prosecution, the onus was upon the appellant to provide a reasonable explanation of his possession of the scratch voucher. The evidential burden to provide a plausible explanation was upon him. This burden being evidential only, it does not relieve the prosecution from proving its case to the required standard. That explanation need only be a plausible as explained by the Court of Appeal in the case of Paul Mwita Robi V Republic [2010] Keca 381 (KLR).
53. The appellant explained that he had collected the scratch voucher in a vehicle he boarded from Kimbimbi to Makutano on his way to Nairobi. That the same had not been used and he asked the driver if he could use it and the driver accepted. The learned trial magistrate did not find that explanation plausible and I agree with her. A scratch voucher is a tiny item. That one can collect it from the floor of a public service vehicle unnoticed and then bother to ask the driver whether there was someone claiming it is indeed implausible. The appellant had the scratch voucher so soon after it was stolen from PW 1. PW 1 and PW 2 identified him as the conductor who ushered them into the vehicle in which they were robbed.
54. There is further evidence from the call data records from Safaricom that the appellant’s number 0769 964 305 was within Kiangai area around 16:14:35 Hours on 30/9/2021 just around the time PW 1 said she boarded the vehicle in which he was, then at Kagumo, where PW 1 said was her destination, on the same day at 16:26:07 Hours and then Mwea Kigesa afterwards. All these are areas within easy reach of Kerugoya where the complainants said they were picked before being driven around for long and eventually being abandoned, again just within the Kerygoya area.
55. I can only find that having found the unused scratch voucher as one of the items they had robbed PW 1 of, he was excited that it was not used and so he used it to top up the credit in his phone.
56. I find that the appellant’s explanation of how he came to have the scratch voucher recently stolen from PW 1 was implausible and must be rejected. His defence was therefore incapable of challenging the strong evidence tendered by the prosecution that he was one of the robbers and it must be rejected.
57. Consequently, I find that the conviction of the appel
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