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Kilonzo v Republic (Criminal Appeal 226 of 2019) [2022] KEHC 16120 (KLR) (Crim) (6 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 16120 (KLR)
Republic of Kenya
Criminal Appeal 226 of 2019
DO Ogembo, J
December 6, 2022
Between
Meshak Mutinda Kilonzo
Appellant
and
Republic
Respondent
(Being an appeal from the conviction and sentence of the Hon. H. M. Nyaga, SPM, in Makadara Chief Magistrate’s court Criminal Case Number 556 of 2016, dated 2.10.2019)
Judgment
1.The appellant, Meshack Mutinda Kilonzo was charged before the lower court with the offence of Robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The particulars of the charge were that on the night of 3rd and February 4, 2016 at Makongeni Kamulu Njiru Sub-County within Nairobi County, jointly with others not before court, while being armed with dangerous weapon, namely pistol and pangas, robbed Julius Mwatha Karanja cash Kshs 36,000/=, TV Make GLD size 32 inch, fridge make LG, 2 pairs of shoes, assorted clothes all valued at Kshs 83,000/= and immediately before the time of such robbery threatened to use actual violence to Julius Mwatha Karanja.
2.The appellant face a 2nd count of Gang rape contrary to section 10 of the Sexual Offences Act, No 3 of 2006. That on the night of 3rd to February 4, 2016 at Makongeni, Kamulu in Njiru sub-county, in association with others not before the court, he intentionally and unlawfully caused his penis to penetrate the vagina of MNW without her consent.
3.He further faced a count III, charge of Gang Rape contrary to section 10 of the Sexual Offences Act, No 3 of 2006. That on the night of 3rd to February 4, 2016 at Makongeni, Kamulu in Njiru sub-county, in association with others not before the court, he intentionally and unlawfully caused his penis to penetrate the vagina of LWM without her consent.
4.The case against the appellant went through full trial. In the Judgment delivered in court on August 8, 2019, the appellant was acquitted on count II and III. He was otherwise convicted on Count I and was accordingly sentenced to serve 30 years imprisonment on October 2, 2019.
5.The appellant has appealed against the said conviction and sentence. In the memorandum of appeal filed herein on November 14, 2019, the appellant has listed the following grounds of appeal.1.THAT the trial Judge erred in both facts and law in relying on the doctrine of recent possession to dismiss the defence when the evidence on the issue was insufficient and in relation to a fast moving item (a mobile phone) when a period of 2 weeks had elapsed.2.THAT the trial Judge erred in both facts and law in upholding the conviction without first critically examining and evaluating the evidence adduced before the court and drawing its own conclusions.3.THAT the trial Judge erred in both facts and law by not finding that the testimonies tendered to establish the mode of arrest was riddles with doubts and was not enough to sustain a conviction.4.THAT the trial Judge erred in both facts and law and misdirected himself in law by evaluating and analyzing the respective cases of the prosecution and the defence in a speculative, skewed, slanted and unfair manner.5.THAT the trial Judge erred in both facts and law in returning a finding of culpability on the part of the appellant in a case largely dependent on circumstantial evidence without corroboration in contravention of section 119 of the Evidence Act.6.THAT the trial Judge erred in both facts and law by failing to fully consider the appellant’s defence in breach of section 169 of the Criminal Procedure Code.
6.The appellant has prayed that his conviction be quashed and that he be set at liberty.
7.This appeal was canvased by way of written submissions. Both sides duly complied and filed their set of submissions.
8.It was first submitted by the appellant that PW1 and PW2 were not able to recognize the faces of the assailants since the offence was at night when there were no positive circumstances to enable the identification. That it would be illogical to exonerate the appellant on the charges of gang rape while hold him liable for that of robbery.
9.The appellant also challenged the veracity of the identification parade, on the grounds that conditions during the incident were unfavourable to enable any credible identification parade. Further, that the parade did not meet the standards in the force standing orders. He relied on Nzaro v Republic (1991)KAR 221, that:
10.He also challenged the issue of the informer who allegedly gave evidence leading to his arrest. He relied on Kigecha Njoga v republic EA 773 (year not shown), where the Judges held:That, in our case, the said informer was not called as a witness.
11.It was further submitted that the charge sheet was absurd in as far it states “the night of February 3, 2016 to the night of February 4, 2016. He also challenged the amendments done of the charges, and also the OB entries. Also that the offence charged only falls under section 296(2) of the Penal and not 295.
12.The appellant further submitted on various inconsistencies in the evidence of the prosecution witnesses i.e evidence of PW1, PW6 and PW7 on the issue of date of the offence and of treatment. Also of PW4, 5 and 8.
13.And that according to PW8, the identification parade seemed to have been done prior to arrest of the appellant.
14.He also submitted that the court wrongly disregarded his defence that he had been arrested on February 14, 2016 after a brawl at a club. He relied on Ssentale v Uganda (1968)EA 365, that;
15.Appellant also challenged the Judgment of the lower court in as far as same referred to a conviction under Section 298 of the Penal Code which carries a sentence of 5 years imprisonment as opposed to the 30 years imprisonment meted out.
16.The prosecution, on the other hand made submissions that regarding the identification parade, the appellant was positively identified by PW3, whose testimony was that there was light from the torch the assailants had and the fact that the incident took around 20 minutes. That the trial court duly warned itself of the dangers of convicting based on the evidence of a single witness. And that the identification parade was conducted in accordance with the force standing orders. Counsel relied on Republic v Valentine Maloba & 3 others (2021)eKLR, on the issue of circumstances of identification. Also on Ajode v Republic (2004)eKLR, and Muiruri & others v Republic (2002)IKLR 274.
17.Counsel went on that the charge sheet was properly amended in accordance with Section 214 of the Criminal Procedure Code. counsel urged that this appeal be dismissed and that the conviction and sentence be upheld.
18.The role of this court in this matter as a 1st appellate court is well settled in the case of Okeno v Republic (1972)EA, 32, that;
19.It is therefore imperative that this court wholly considers the evidence was tendered by both sides before the trial court so as to reach it’s own conclusions on the same.
20.The case of the prosecution started with the evidence of PW1 LWM that on February 3, 2016 at night she had been asleep in her room in their 4 bedroom house, when she heard noises on the door. That the door was hit very hard and swung open. 2 men entered the room, one with a flashlight. One of the men forcefully removed her clothes and raped her as 2 others kept watch. The man held a knife. The men demanded for money from her. She lost her bag during the incident. She was later taken to Nairobi Women Hospital, where she was treated and a post rape care form was filled for her (MFI-1). A P3 form was also later filled for her (MFI-2) She did not identify the attackers as it had been dark. She otherwise confirmed that the attackers took money from her cousin and also went away with a TV set.
21.PW2 was Dr Kizzy Shako. In her testimony, she examined PW1 on February 18, 2016 and noted she had normal anatomy, old hymeneal tears. This was 2 weeks after the incident. She duly filled the P3 form which she produced (EXh-3).
22.The 3rd witness, PW3 was Julius Mwatha Karanja, whose evidence was that on the night of 3rd-February 4, 2016, he had been sleeping in his house when he heard a loud bang. He then saw someone flash a torch at him through the window; 2 torches were flashing at him. He was ordered to keep quiet as his wife was ordered to open the door. Then 2 men entered his room with pangas. They demanded for money. That in the process, the lights from the torches shone from side to side and even on themselves. The men took Kshs 16,000/= from his jacket and Kshs 27,000/= from the suitcase. His evidence was that he could hear other men in the other rooms, and that as his room was searched, he was able to see the faces of 2 of the men, one of who is the appellant. That torch light shone on his face. He managed to get out after the robbers had left and he learnt from L and M, that they had been raped by the robbers, both of whom were rushed to hospital. He noticed that the robbers had taken his TV, Fridge, Shoes, clothes and cash.
23.The witness went further he duly told the police what had transpired. And that on 6th, 2 days after the incident, he had been at Kamulu at about 1:00pm, in a club when he got information that a TV had been seen outside a house belonging to one “Mucounty”. That on being introduced to “Mucounty”, the man confirmed that he had seen a TV outside his bar in a bush. He was led to the bush where he recovered his TV panel (MFI-4) box and holders (5 and 6). And that on 18th he was called by the police to an identification parade in which he identified the appellant. In his evidence, the appellant is the one who had been doing the ransacking as the other man shone the torch, even on the face of the appellant several times. He also confirmed that he had co-operated because he saw a gun.
24.PW4, Patrick Mugo Kimando, gave evidence that on the night of (incomplete date) he had gone to sleep at about midnight. He had been in the house of PW3. He heard noises at the door, before he heard PW3 pleading, “Usiniue, usiniue.” He saw as torches flashed around as the attackers demanded for money or they would kill them. He saw the men share the money at the table, before leaving with the TV and theatre. He then came out of his hiding. He did not identify the thieves. And PW5, Anthony Kuhuria Mwangi, the Nyumba Kumi chairman only gave evidence on how he had responded to the screams as a neighbor. PW6 Peter Wanyama, a Clinical, produced the post rape care form of PW1 as exhibit (Exh1) on behalf of his colleague, Omwenga, the maker. He also produced the form in respect of MNW. He confirmed that in both cases, vaginal lacerations were noted and the hymen was torn.
25.MNW was PW7. She confirmed that she had been raped during the incident and was later taken to hospital. She did not identify any of the attackers.
26.Chief Inspector Peter Ireri Nyaga, PW8, is the officer who did the identification parade of the appellant. His testimony was that the parade was conducted in accordance with the force standing orders. That appellant did not object to the parade and chose to stand between numbers 4 and 5. That PW3 picked him out. Appellant was not satisfied and the witness duly reordered his sentiments. He however signed the parade form (Exh-8).
27.The last prosecution witness (PW9), noted as PW10, was PC Kiama Kireri. He gave evidence that on the night of February 3, 2016, he had been on patrol when he got a distress call. He rushed to where the caller was at the hospital with the 2 ladies who had been raped during the robbery before proceeding to the scene. That complainant recorded his statement on February 6, 2016. And that on February 18, 2016 at about 2:00AM, he got a tipoff that a suspect had been sighted. He proceeded to stage 26, where an informer pointed out the appellant as he chewed miraa with 2 other men. He arrested the appellant, who was later identified at a parade. This witness added that the appellant refused to take him to his house, and that he would not disclose the identity of his informer.
28.When he was put to his own defence, the appellant gave sworn defence in which he stated that on February 14, 2016, he rose up at 6:00AM and went to work. That at about 2:00PM he went to a club to watch football when a fracas started between 2 men. That he was then arrested after he said he had no money to pay for the damage caused as a result of the fracas. He called no witness.
29.This basically is the whole evidence tendered before the trial court. In my view, the following issues come up for determination in this appeal:i.Proof of the offence of robbery with violence.ii.Identification of the appellant as one of the assailants.iii.The issue of the identification parade.iv.Any defects on the charge sheet.v.Any contradictions in the prosecutions case.vi.Defence of the appellant.vii.Sentence.
30.On the first issue, it is important to understand the law behind the offence of robbery with violence. Section 295 of the Penal Code defines the offence of robbery as:-
31.Any person who steals anything and at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is guilty of a felony termed robbery.”
32.And the section 296(2) of the Penal Code, the offence of robbery with violence is codified as follows:
33.This court gets guidance from the decision of Oluoch v Republic (1985)KLR, 549, on the ingredients of the offence of robbery with violence, that;
34.The above decision confirms that proof of only 1 of the 3 ingredients would be sufficient proof of the offence of robbery with violence. In respect to our present case, the prosecution laid evidence of at least 5 witnesses PW1, PW2, PW3, PW4, PW7 that clearly corroborated each other in proving that the assailants were more than 1, that violence was used on some victims, while threats to violence was used on others. The evidence of the 2 medical officers, PW2 and PW6 also gave evidence on this element of violence as was captured in their respective medical records produced as exhibits. This court is accordingly satisfied that the prosecution duly proved this elements.
35.The next issue herein is whether the appellant was identified as one of the assailants in this incident. On this issue, it is worth noting that the prosecution relied on the evidence of only 1 witness, PW3. And the evidence of this witness was that 2 or 3 assailants entered his bedroom with at least 2 torches. That the robbers kept flashing their torches all over the room and on the face of the appellant, who was the one ransacking the room for money and other items to be stolen. And that the robbers were in the room for about 20 minutes.
36.The issue is whether in the circumstances, the witness, PW3, could possible positively identify the appellant. If the appellant was the one searching all over the room, obviously, the torches must have continuously flashed at his face. This is because the robbery was at night when it was dark, hence the use of torches by the robbers. The one conducting the search all over the room could also not do so without the aid of the lights from the torches. And the time the whole incident took is also a pointer. If it took about 20 minutes, this court is convinced that this was sufficient time for PW3 to see well and identify the appellant as one of the robbers, the one who was doing the search.
37.And to me, the accuracy of the identification by PW3, was confirmed by the fact that in his initial report after the incident, the witness (PW3) confirmed to the investigating team that he would be able to identify the appellant if he saw him. He was candid enough to state that he was not able to identify the other attackers. The accuracy of the identification was further put beyond doubt when the witness picked the appellant at the identification parade.
38.On the issue of the identification parade, the appellant has challenged the same on the grounds that since it was night, the circumstances of identification were poor and so the parade was not credible. This court has analysed the said circumstances at the time of this incident and reached a conclusion that facial identification of the appellant by PW3 was possible.
39.It was the evidence of PW8, that the identification parade was conducted in accordance with the Kenya Police Standing Orders. I have perused the parade from produced herein (Exh – 8). It is clear from the same that the appellant had no objections to the parade and participated in the same voluntarily. He chose to stand between numbers 4 and 5. The witness identified him by touching him. At no time did the appellant challenge the conduct of the parade. This, to me, can only mean that PW8 conducted the parade in accordance with the rules, and that PW3 indeed properly identified the appellant at the parade. In this regard, I am in agreement with the trial court, which relying on Roria v Republic (1967) EA 583, warned itself of the dangers of conviction based on the evidence of a single witness, but nonetheless made a finding that the evidence of PW3 was credible and therefore safe to convict based on the same.
40.Since the appellant was acquitted on count II and III of gang rape, the same are not part of this appeal. I therefore shall not make my determinations regarding the same.
41.The appellant has submitted on alleged defects on the charge sheet. With respect I do not see any defects on the charge sheet herein. The offence is alleged to have occurred on the night of 3rd to February 4, 2016. This is what is contained in the charge sheet and I do not find any fault in including both dates in the charge sheet since days (dates) would end and start at midnight.
42.I also do not find any fault in the fact that the charge sheet was amended midway the trial. Section 214 of the Criminal Procedure Code guarantees the prosecution side the right to amend the charge sheet at any time before the close of the prosecution case. In this case, the appellant did not object to the prosecution application for amendment of the charge sheet. Similarly, I do not find any contradictions in the prosecution’s case and the appellant has not pointed out any.
43.On the issue of informers, the appellant submitted that he said informer herein was never called to testify. He relied on Kigecha Njogu v Republic. He however, did not give the fall citation of the case. A closer look at the ratio decidendi of the case as cited by the appellant however, is that informer may be called as a witness only if the prosecution desires to call the witness to testify. The prosecution in this case did not portray or show such desire.
44.On the defence of the appellant, he stated to have been arrested at a night club after a brawl and after he failed to pay for the resultant damage. With respect, the appellant did not support his claim with any evidence. Who were engaged in the brawl? Over what? In which bar? Any demand on his to pay the damage? And how come he was the only one arrested? Did the police officer’s even know him before the arrest? It is worth noting that the appellant had absolutely no defence to the evidence of PW3 against him. He similarly had no defence to the evidence of the arresting officer, which clearly showed that he was arrested pursuant to information given by an informer. I sincerely do not find any merit in the defence of accused and same is dismissed.
45.Lastly, on the issue of sentence, as shown above, section 296(2) of the Penal Code provides for a sentence of death. The appellant was sentenced to serve 30 years imprisonment. This sentence is both proper and legal.
46.In the circumstances, I do not find any merit in the appeal of the appellant filed herein on November 14, 2019. The same is dismissed wholly. The appellant shall serve out the sentence as ordered by the trial court. For avoidance of doubt, he shall serve 30 years imprisonment. The sentence shall run from February 19, 2016 when he was first remanded in custody.
HON D O OGEMBOJUDGE6TH DECEMBER 2022COURT:JUDGEMENT READ OUT IN OPEN COURT (ON-LINE) IN PRESENCE OF THE APPELLANT (KAMITI) AND MS. CHEGE FOR APPLICANTHON D O OGEMBOJUDGE6TH DECEMBER 2022
