Analysis And Determination
19.I now proceed to make my determination first on the issues I have identified hereinabove as being the issues for determination in this appeal, and finally on the fate of this appeal as well as the orders that commend themselves to me for making. The said issues I have already enumerated herein thus: (a) Whether the charge as drawn in the charge sheet defective and cited a wrong provision of the law in a charge of Robbery with Violence; (b) Whether the offence of robbery with Violence with which the appellant was charged was proved or not, and to the required legal standard of proof (i.e beyond reasonable doubt) and whether the totality of the evidence on record was sufficient to sustain the conviction; (c) Whether the appellant was positively identified and connected to the robbery and whether the identification parade at which the complainant picked him out was properly conducted; and (d) Whether the death sentence imposed on the appellant is abolished, illegal and/or unconstitutional in Kenya; and whether the same was arbitrary, warranted and unjustified in the circumstances of this case.
a.Whether the charge as drawn in the charge sheet defective and cited a wrong provision of the law.
20.The appellant has in his appeal contended that the charge on which he was convicted and sentenced, was defective. I have carefully perused the charge sheet. Notably, after the charge sheet setting out the offence charged as robbery with violence contrary to section 296(2) of the penal code, it set out the particulars of the offence as follows:
21.There are legal provisions as well as decisional law by superior courts on the test for determining whether a charge is defective, and more particularly for the offence of robbery with violence. I begin with section 134 of the criminal procedure code, which provides that:
22.As for the High Court, Ngugi J (as she then was) in BND V. Republic  eKLR, while in laying down the test to be followed in determining whether a charge sheet is defective, stated as follows:
23.Court of Appeal in Joseph Njuguna Mwaura & 2 Others v. Republic  eKLR while considering what should be contained in a charge sheet in a case of robbery with violence, stated as follows:
24.The court further cited its decision in Joseph Onyango Owuor & Cliff Ochieng Oduor vs R  eKLR, where it stated as follows:
25.It further observed that section 295 of the penal code is merely a definition section, and held as follows:
26.After carefully read contents of the charge sheet presented by the prosecution in the trial court, as well as the above cited authorities, I find that the section cited herein i.e section 296(2) of the criminal procedure code (Cap 75 Laws of Kenya) is the correct section for a charge of robbery with violence, such as was the case in the trial court. I further find that the particulars of the offence as sated in the said charge sheet are von all fours with the essentials of the offence of the said offence. For those reasons I firmly hold that the charge as presented to court was not defective. Further, the appellant’s contestation is an afterthought after he has been convicted, as he would have at the time of plea-taking objected to the charge. This is by dint of section 89 of the Criminal Procedure Code.
aWhether the Offence of Robbery With Violence With Which the Appellant Was Charged Was Proved to the Required Legal Standard
Elements of the Offence of Robbery with Violence
27.The Appellant has in his Appeal contended that the prosecution failed to prove the ingredients of the Offence of Robbery with Violence. The elements of the offence of robbery with violence were set out by the Court of Appeal in Oluoch V. Republic  KLR, where it stated as follows:
28.In Dima Denge Dima & Others v. Republic,Criminal Appeal No. 300 of 2007:
29.In the instant the Accordingly, the prosecution proved beyond reasonable doubt that; (i) the offenders were armed with dangerous and offensive weapon or instrument; (ii) the offender were in company with one or more person or persons; and (iii) at or immediately before or immediately after the time of the robbery the offenders wounded, beat, strike or used other personal violence them.
30.Nonetheless, as the incident occurred at night, care should be taken to ensure the appellants were positively identified as the perpetrators of the offence. The court in Wamunga v. Republic (1989) KLR 424 at 426 had this to say:
31.From the prosecution’s evidence on record the appellant met the complainant and the appellant rode in the complainant’s vehicle in broad daylight, and for some time before the appellant and his accomplices bound the complainant’s limbs with cello tape and abandoned him in the bushes. That interaction was at such a proximity, and I do not find any element of a mistake in recognizing the appellant and picking him out at the identification parade conducted at the police station. The same goes for identification evidence by PW 3 (NO. 68439 PC Johanna Cheruiyot Rono) and PW 4 (NO. 84075 PC Bernard Yegon) the appellant’s fellow police officer, and who stated that they have known him for a long time as he was their Judo instructor at police college. From the complainant’s evidence in cross-examination, the abduction and robbery took about an hour, he stated that it was from about 1.00 PM to 2.00 PM. During which time the appellant whipped out a gun, and together with his accomplices commandeered the said vehicle. The complainant further stated that the team closed his eyes, forced him to drink a liquid that had a tablet, removed him from the townace vehicle he was driving, put him in a probox vehicle, covered him, took from him two mobile phone, forced him to give them his M-Pesa PIN, taped his eyes, hands and mouth, and later abandoned in the bushes.
32.On this point I am satisfied with the appellant’s identification by the prosecution’s witnesses. I do not find any element of mistake or delusion on the part of the witnesses in the identification of the appellant as one of the people who robbed him on the material day. The same goes for the evidence of PW 3 and PW 4, who are the police officers who flagged the appellant down while he was driving the complainant’s stolen vehicle and who thereafter after they had entered the said vehicle drove with them as passengers, towards the police station. Indeed the obtaining circumstances favour positive identification and do not exhibit any particular difficulty in the identification of the appellant. Although the said gun was neither recovered nor produced in court as an exhibit, I am satisfied that there was a threat of use of use by the appellant and his accomplices, or justifiably reasonable apprehension thereof on the part the complainant.
33.Besides, the evidence by the prosecution beyond any reasonable doubt that when committing the said robbery, the appellant was armed with a gun, and was in the company of others. And that while committing the said robbery, the appellant not only threatened to use force, but that he immediately before and during the said robbery used actual force on his victim the complainant. Such force having been applied to the complainant, immediately before and during the robbery.
34.Before I tackle the ground of the constitutionality, lawfulness as well as aptness of the death sentence the subject of this appeal, I need to deal with the evidentiary weight to be attached to the appellant’s unsworn statement that he gave when the trial court put on his defence.
The Appellant’s Unsworn Statement at trial
35.Before I turn to the sentence imposed by the trial court, I should comment on the defence offered by the accused when he was in compliance with section 211 of the CPC put on his defence. It is noteworthy in his defence, that the appellant elected not to testify on oath, hence gave an unsworn statement and did not call any witness(es). He in in the said unworn statement endeavoured, and extensively so but unsuccessfully, to poke holes in the prosecution’s evidence as well as faulting the manner in which investigations were conducted. While he had through cross-examination attacked the credibility of the prosecution witnesses, it is curious that even with the seriousness of the charge against him as well as the gravity and magnitude of the sentence likely to by law be imposed on him if convicted, he chose to give an unsworn statement thereby carefully tucking away his story, and securely shielding as well as safely insulating himself from being subjected cross-examination. This had the net result of his evidence remaining unprobed and his credibility untested.
36.I am not in any way faulting the legality of his election to give an unsworn statement. What is alarming is the logic and appropriateness of giving an unsworn statement in answer to such serious charges and imminence of the most dreaded and terminal sentence such as death. Logically, his said election has had the unfortunate consequence that his story regarding the said robbery or allegation thereof, will forever remain untold, as he will never testify on it, given also that appeals are by law prosecuted by way of submissions on (oral or written). Having, from the filed record of appeal and the record in the original trial court file, known the prosecution’s story, this honourable court would have wished to know his story as well. Unfortunately, this will never be told in that while the appellant has in his unsworn statement merely and technically attacked the prosecution’s evidence and testimonies of its witnesses, he has not given his side of the story, including how he was arrested and brought to court. Could there be anything he was hiding from court? After all the rendition of his unsworn statement was in the manner of closing submissions in the case.
37.In his unsworn statement rendered in the style of submissions concentrated on merely casting doubt on the testimonies of all and each of the prosecution witnesses and on technicalities, and choreographed in a manner that totally avoided to give his side of the story, for instance where he was at the time of the alleged offence (alibi) and whether he knows or has ever met the complainant. Including whether he knows the arresting officers, and who had in their evidence stated that he was their judo instructor at Police Training College hence knew him well. This is strange. However even as I say this, I am fully aware that the burden of proof in that case remained on the complainant and his witnesses to prove their case against the appellant, and he as an accused person was under no legal duty to prove his innocence and was entitled to even remain silent and let the trial court deliver its verdict on the prosecution case alone.
38.In my opinion, an unsworn statement is strictly speaking no evidence, as without being subjected to cross-examination, its veracity and the credibility of its maker remain untested, and so is who he is, his position in life, and even his character. As under section 154 of the Evidence Act (Cap 80 Laws of Kenya) a witness may in cross-examination be asked questions which tend:a.to test his accuracy, veracity or credibility;b.to discover who he is and what is his position in life;c.to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
39.Little if any premium should be accorded to its contentious and substance. This position has been taken umpteen times by superior courts on the strength, effect and evidentiary value to be attached to an accused’s unsworn statement, Emukule J in Mercy Kajuju & 4 Others v. Republic  eKLR had this to say on unsworn statement of an accused:
40.From the above analysis, I respectfully find that the offence of Robbery with Violence with which the appellant was charged in the trial court, was proved beyond reasonable doubt, hence there was enough evidence on record to support the conviction, and therefore the appellant was properly convicted. For that reason, the appeal on conviction fails, and I therefore hereby uphold the said conviction. The other limb of the appeal, and which I now embark on is on sentence. On this my rendition is as hereunder set out.
Was the Death Sentence Declared Unconstitutional or Abolished in Kenya?
41.The penal code prescribes a death sentence for the offence of robbery with violence. The trial court imposed the sentence as provided in law. I have perused the decision by the trial court and it is apparent that the death penalty was imposed because according to the trial magistrate it was the only sentence prescribed in law at the time.
42.The appellant has in this appeal argued that the death sentence was by the Supreme Court’s Muruatetu decision and certain High Court decisions declared unconstitutional and effectively abolished the death sentence in Kenya, and that therefore the trial court imposed an illegal sentence. Nothing can be further from the truth, as this as already stated herein is a gross misinterpretation or misunderstanding of the decision of the Muruatetu decision. The correct position and interpretation is that What the court did was to remove the mandatory nature of the death sentence in section 204 of the penal code for being inconsistent with the Constitution: and held that courts have the discretion to impose a sentence other than death in accordance with the circumstances of each case. Undeniably, the death penalty is still prescribed in law hence it is a lawful, legal and constitutional sentence that courts may impose for offences for which the law has prescribed- currently the offences of treason, Robbery with Violence, and murder; under sections 40 (3), 204 and 296(2) of the penal code, respectively. Death sentences under these legal provisions only, and for these offences only, are constitutional as the constitution in article 26 allows the taking away of life in execution of a lawful sentence of a court of law.
43.Indeed, the directions given by the Supreme Court on July 6, 2021 in the Muruatetu Case were inter alia that the said decisional law is not an authority to declare all mandatory or minimum sentences unconstitutional. Its application was limited to murder cases falling within its scope. Therefore, this being a case for robbery with violence, the increasing requests by the appellants such cases for review of sentence on the basis, the Muruatetu decisions are clearly misconceived. Notably each appellant or applicant for review has to argue his case on the basis of the law and facts of his case, and the courts have a latitude to make a decision according to the facts and circumstance of each particular case.
44.The question that begs for an answer in this case is whether there is any lawful reason to interfere with the discretion of the trial court in passing the death sentence. In James Kariuki Wagana v. Republic  eKLR, Prof. Ngugi J (as he then was) observed that while the death penalty is the maximum penalty for both murder and Robbery with Violence, the court has the discretion to impose any other penalty that it deems fit and just in the circumstances. Further that the death sentence should be reserved for the highest and most heinous levels of robbery with violence or murder. He noted that while force had been used in the case before him, it could not be said that the appellant used excessive force, nor did he “unnecessarily injure the complainant during the robbery”, and was not armed during the robbery. He therefore reduced the appellant’s sentence of death to imprisonment for fifteen years, from the date of conviction.
45.In the appeal before me, all the ingredients of robbery with violence have been satisfactorily proved. The appellant, who was in the company of others, robbed the complainant, and in the course of the robbery, violence (force) was not only threatened but was also applied in binding the complainant’s hands, mouth and eyes with tape. However, the appellant Paul Kennedy Ochieng Otieno was ostensibly a police officer then serving interdiction, was at the time armed with a dangerous weapon, namely a gun although he did not discharge any bullet, and no harm or grevious harm was caused to the complainant. Nevertheless, the mere sight of the gun seems to have actually scared the complainant to the bone marrow as he feared for his dear life. No wonder he even was forced hand over to his tormentors, his two mobile phones and further disclosed to them his M-Pesa PIN, which they used to withdraw money from his M-Pesa Account.
46.In the circumstances, while I have upheld the conviction, I find the sentence of death imposed on the appellant, excessive and unwarranted in the circumstances of this case. Even the aggravating factors that the trial magistrate cited in his judgment (for instance the fact of the appellant having been a police officer) do not provide adequate justification for the death sentence. The amount of force applied to the complainant was not sufficiently grave to warrant a death penalty. Although there was a threat of violence and some force subsequently applied on the complainant at the time of commission of the offence, this was in binding him up with cello tape, and neither resulted in death nor grievous or even notable harm, as no P3 form was produced in evidence. Exercising reason, these circumstances and factors at most warrant a deterrent custodial sentence, but certainly not a death sentence.
47.I have noted that the learned trial magistrate in his judgment on record remarked that he was imposing death, as mandatory sentence provided by law for the offence of robbery with violence. When he stated that “The law provides for a mandatory sentence and for that reason “I do sentence the accused to death” (Quoted verbatim). The learned trial magistrate by this statement appears to be of the persuasion that as the penal code has prescribed a death sentence for the offence of robbery with violence, his hands are tied. That is a misstatement of Kenyan law as it obtains currently, because the decisional law espoused in many of the decisions of superior court in Kenya, including the ones cited in this judgment, are for courts exercising discretion even in such cases, and frown upon provisions that curtail courts discretion in sentencing. This is indeed in Kenya’s current Sentencing Policy, copies of which have been supplied to courts are readily available to judicial officers. I therefore direct that this judgment be availed to the trial court for noting.
48.This is a case that deserves a reasonably proportionate, but deterrent sentence that will send a signal to would-offenders who may want to take the same route as the appellant. Just as said by the learned trial magistrate in her judgment, police officers need to know that they have a special responsibility of protecting the lives and property of Kenyans, and such incidents are a betrayal of the public trust that Kenyans need to have in our Police Service. At the time of committing the offence, the appellant a police corporal was serving interdiction for desertion. Being a person trained in the use of guns, his being in illegal possession of a gun and actually using it in the robbery in question, makes him a dangerous person that should be kept away from the public by way of a custodial sentence. I say this because the Appellant has at paragraph 41 urged this court to give him a non-custodial sentence.
49.Finally, I set aside the death sentence imposed by the trial court and substitute it with a term of imprisonment for 20 (twenty) years to commence from the date of the sentence of the lower court, i.e December 9, 2018, so as to include the period already served.
50.In arriving at this sentence, I have also taken in consideration the mitigation that the appellant gave at the time of conviction. Therefore, this appeal succeeds partially in terms only of substitution of the death sentence with the custodial sentence hereinabove stated.