Kiboi v Republic (Criminal Appeal 107 of 2019)  KECA 1416 (KLR) (16 December 2022) (Judgment)
Neutral citation:  KECA 1416 (KLR)
Republic of Kenya
Criminal Appeal 107 of 2019
W Karanja, HM Okwengu & MSA Makhandia, JJA
December 16, 2022
Peter Mwai Kiboi
(Appeal from the Conviction and Sentence of the High Court in Nairobi (Ochieng & Achode, JJ.) dated the 15th day of October 2012 in HC.CR. A. NO. 796 OF 2007 Criminal Appeal 226 of 2008 )
1.This is a second appeal by the appellant Peter Mwai Kiboi against his conviction and sentence. He was first tried, convicted and sentenced to death by the Senior Resident Magistrate’s Court at Githunguri, for the offence of robbery with violence contrary to section 296(2) of the Penal Code. His first appeal against his conviction and sentence was dismissed by the High Court (Ochieng, & Achode, JJ). Undeterred the appellant is now before us.
2.During the trial, the prosecution called 5 witnesses, while the appellant gave unsworn evidence. The two main witnesses were Ann Wangui Njuguna (Ann) the complainant, and her brother, Peter Ndingui Njuguna. In brief, Ann was walking within Githunguri outskirts with her 8-year-old daughter, on their way home when she realized the appellant was following her. The appellant then came from behind her pulled a panga from his jacket and grabbed her handbag. Ann let go of her bag and started screaming. Members of the public responded to her screams including her brother Peter, but only managed to recover the panga, the appellant having escaped. Ann handed over the panga to the police and reported the matter. She identified the appellant as a person well known to her.
3.Peter testified that he was behind Ann and the appellant, when he saw the appellant grab Ann’s handbag and realized that it was her sister being robbed. Peter swore that he saw the appellant, and that he knew him before. Sometime later the appellant was spotted and Ann alerted the police who arrested him. The appellant denied having committed the offence maintaining that he was arrested for something he knew nothing about.
4.The trial magistrate found the evidence of Ann well corroborated by that of Peter. He was satisfied that Ann knew the appellant well before the incident, and the possibility of mistaken identification did not therefore arise. The trial magistrate, therefore, found the prosecution case proved to the required standard and found the appellant guilty.
5.During the first appeal, the appellant’s main complaint was his identification, as he contended that the conditions were not conducive to a positive identification, and that the prosecution witnesses lacked credibility. In dismissing the appeal, the learned Judges of the first appellate court rendered themselves as follows:
6.In an effort to establish that the learned Judge of the High Court erred in dismissing his appeal, the appellant relied on a memorandum of appeal raising 13 grounds in which he contends, inter alia, that the prosecution case was not proved beyond reasonable doubt; that the learned judge failed to note that the trial magistrate disregarded the appellant’s evidence; that the credibility of the prosecution witnesses was in doubt, and the testimony of the witnesses inconsistent; that the charge sheet was defective and lacked particulars; that the learned judge erred in upholding the appellant’s conviction which was based on identification by a single witness whose evidence was not corroborated; and that the appellate judge erred in upholding the mandatory death sentence.
7.The appellant was represented by counsel who filed written submissions, in which he identified 5 issues for determination. That is: whether the complainant and the prosecution witnesses properly identified the appellant; whether the prosecution discharged its burden of proof beyond reasonable doubt; whether the prosecution testimonies were reliable; whether the sentence passed was proper; and whether the appellant has right to remission.
8.It was submitted that the evidence of the complainant who was a single identifying witness was unreliable and uncorroborated by material particulars by another independent witness. The court was referred to the case of Cleophas Otieno Wamunga v Republic  KLR 424 in which the court stated that evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Also referred to is the caution in Republic v Turnbull  3 All ER 549 that recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone who he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
9.On the issue of burden of proof, the court was urged that the burden of proof in criminal matters lies on the prosecution, and that the accused need not give evidence to the contrary. It was reiterated that the appellant was not properly identified by the prosecution witnesses; that the appellant was not arrested with the panga that was allegedly used in the robbery but the same was recovered in a nearby bush, and there were no special features nor was there any evidence linking the appellant to the panga or scene of crime. Further, it was argued that the evidence of the prosecution witnesses was inconsistent, contradictory and unreliable
10.As regards the sentence, it was submitted that the sentence imposed upon the appellant was improper as it was mandatory in nature, and this was declared unconstitutional by the v Supreme Court in Francis Karioko Muruatetu & Others v Republic  eKLR (Muruatetu Supreme Court decision). It was submitted that section 204 of the Penal Code that provides for a mandatory death sentence is antithetical to the constitutional provisions for protection against inhuman or degrading punishment and fair trial.
11.In addition, the learned Judge was faulted for ignoring the appellant’s mitigation and the fact that he was a first offender. Relying on Joseph Kaberia Kahinga & others v The Attorney General  eKLR, it was submitted that mitigation is an important part of the trial, where the Court obtains information in the form of evidence or report, giving circumstances either of the offender or the victim or their respective families.
12.Finally, it was submitted that the appellant has a right to remission as section 46 of the Prisons Act that prohibited remission for offences under section 296(2) was declared unconstitutional by the High Court in Sammy Musembi Mbugua & 4 others v the Attorney General & another  eKLR
13.The respondent also filed written submissions in which it was submitted that the learned Judges of the first appellate court properly re-assessed and re-evaluated the evidence and agreed with the findings of fact made by the trial court. It was argued that the ingredients of the offence of robbery with violence were proved; that the appellant was properly identified as Ann knew him before the attack and the robbery occurred at 2 p.m. in broad daylight.
14.Further, that Ann’s evidence was corroborated by that of her brother Peter who clearly saw the appellant who was armed with a panga rob Ann. It was submitted that the appellant stole Ann’s handbag containing a scarf, keys, medicine, and a phone and the offence of robbery was established as the appellant was armed with a panga which was an offensive weapon.
15.Under section 361 of the Criminal Procedure Code, the appeal before us being a second appeal, this court’s jurisdiction is limited to considering issues of law. In Karingo v Republic  KLR 219 this court stated:
16.This was restated by this Court in Dzombo Mataza v Republic  eKLR thus:
17.Having carefully considered the memorandum of appeal, the written submissions and the record, we discern the following four main points of law for consideration: Whether the charge against the appellant was defective; whether the appellant was properly identified; whether the charge against the appellant was proved beyond reasonable doubt; and whether the sentence imposed upon the appellant was proper.
18.As regards the charge sheet, the charge against the appellant is stated as “robbery with violence contrary to section 296(2) of the Penal Code.” the particulars being that:
19.The appellant has not stated or established in what way the charge sheet was defective. Under section 134 of the Criminal Procedure Code, a charge is sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. In this regard the particulars of the charge against the appellant as stated in the charge sheet were clear and supported the charge of robbery with violence.
20.We note that no evidence was adduced to prove the value of the things which were allegedly stolen. However, this is of no consequence. As was stated by this court in Ogaro v Republic  eKLR:
21.The learned Judges of the first appellate court properly considered the particulars of the charge and found that they were consistent with the charge of robbery with violence and were established. We reiterate what this court stated in Bernard Ombuna v Republic 2019 eKLR:
22.In this case the particulars were clear and the appellant suffered no prejudice as he was able to defend himself. We find no defect in the charge and therefore reject this ground of appeal.
23.As regards the issue of identification the learned Judges of the High Court properly directed themselves by referring to Joseph Ngumbau Nzalo v. Republic  2KAR 21, in which this court cautioned that:
24.At paragraph 7 and 8 of the judgment of the High Court which we have quoted above, the learned Judges reviewed and evaluated the evidence of identification. We on our part have done the same and we are satisfied that the appellant was recognized by both Ann and Peter. The evidence of identification was not that of a single witness. Even leaving aside the evidence of the 8-year-old minor, Ann’s evidence was corroborated by the evidence of Peter. The incident occurred at 2.00pm in broad daylight and there was no possibility of a mistaken identification. We come to the conclusion that the charge against the appellant was proved beyond reasonable doubt, and the appellant was properly convicted.
25.The trial magistrate in sentencing the appellant stated:
26.The learned judges of the High Court did not address the issue of sentence, and this is not surprising because the issue of mandatory death sentence being unconstitutional, only came up with the Muruatetu Supreme Court decision that was delivered on December 14, 2017, long after the judgment of the High Court which was delivered on October 15, 2012. The issue was not raised before the first appellate court, and in any case as at that time the sentence imposed was the proper sentence.
27.In addition, in Francis Karioko Muruatetu & another v Republic: Katiba Institute & 5 others (Amicus Curiae)  eKLR, the Supreme Court clarified that the ratio decidendi of the Muruatetu Supreme Court decision was that, notwithstanding the finding of the Supreme Court that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for mandatory sentence for murder, the decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment. The Supreme Court reiterated that the Muruatetu Supreme Court decision did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other Statute.
28.For these reasons, we find no merit in this appeal. It is accordingly dismissed in its entirety.
DATED AND DELIVERED AT NAIROBI THIS 16TH DAY DECEMBER, 2022.W. KARANJA................................JUDGE OF APPEALHANNAH OKWENGU................................JUDGE OF APPEALASIKE MAKHANDIA................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR