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Sidwaka v Republic (Criminal Appeal 118 of 2019) [2023] KEHC 2887 (KLR) (Crim) (21 March 2023) (Judgment)
Neutral citation:
[2023] KEHC 2887 (KLR)
Republic of Kenya
Criminal Appeal 118 of 2019
LN Mutende, J
March 21, 2023
Between
Justus Omondi Sidwaka
Appellant
and
Republic
Respondent
(Appeal against the original conviction and sentence in Criminal Case No. 4011 of 2016 at the Chief Magistrates’ Court Kibera by Hon. Gandani – CM on 8th April , 2019)
Judgment
1.Justus Omondi Sidwaka, the appellant, was charged with the offence of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code. Particulars of the offence being that on the 19th day of February, 2016 at Ngila Estate in Lang’ata Sub-County in Nairobi County, jointly with another not before court while armed With Dangerous Weapons Namely Pistol And A Knife Robbed One Ezra Mogere Machachi Of His Mobile Phone Neon Valued At Kshs.3,000/= Cash Kshs.400/= And One Pair Of Safari Boots Shoes Valued At Kshs.2,500/= And Immediately Before The Said Robbery Wounded The Said Ezra Mogere Machachi.
2.Having been taken through full trial and found guilty, the appellant was convicted and sentenced to serve twenty (20) years imprisonment.
3.Aggrieved, he appeals on grounds, as amended, that the learned trial magistrate erred in matters of law and fact by failing: to find that there was no adverse positive first report against the appellant, neither was an identification parade conducted to corroborate his purported identification at the scene; to find that the doctrine of recent possession was inapplicable in the instant case and identification was not positive; to find that there were material contradictions and inconsistencies which went to the root of the prosecution’s case; to find that essential witnesses who needed to corroborate the prosecution’s case were not called upon to give evidence; to find that the mode of arrest was unjustified; by not giving regard to the defence put up, which plausibly underpinned the doubtful circumstances circumventing the mode of arrest and identification that was in violation of the rules of natural justice.
4.Briefly, facts as presented by the prosecution were that on the 19th day of February, 2016, PW1 Ezra Mogere, the complainant, a Bodaboda rider was within Bombolulu – Kianda area when the appellant, a person known to him as his customer with another requested to be taken to Rowland through Ngina Road. When they approached Ngina Road his customers asked him to slow down and he complied. The other customer jumped off the motorcycle and the appellant who sat in the middle fell down with the motorcycle. All over a sudden he produced a knife and threatened him. He stabbed him on the left side of the head, left palm back and abdomen. The appellant pulled out a pistol and hit him once on the left eye. He pulled him to the bush and when his phone rang, he demanded for the money and everything that he was in possession of.
5.They took from him the cellphone, sahara safari boots and cash Ksh.400/= The appellant tied his hands and legs with a binding wire. Then he stashed a pair of socks into his mouth and used a knife to push it in as they threatened to kill him.
6.They went towards the road but on seeing a motorcycle passing by they ran back to the bush. The complainant however, managed to roll to the road. PW3 Justine Mullel Kotai a guard at Ngina estate was approached by Richard, a motorist who told him that he had seen a motorcycle on the ground with lights on but had not seen any rider nearby. He boarded his motor-vehicle and they went to the scene. He called Jamhuri Police Post to report the incident. PW5 No. 233964 Inspector Joseph Kituyi upon receiving the call from PW3 rushed to the scene and found PW1 injured. Since he did not have a police motor vehicle, the motorist agreed to assist. They left for Ushirika Medical Centre but along the way encountered the OCS and duty officer with the police vehicle.
7.They transferred the complainant to the vehicle and rushed him to Kenyatta National Hospital where he was admitted for a week prior to being transferred to Kikuyu Mission Hospital where the eye that was completely damaged was removed.
8.Upon being discharged, the complainant formally lodged a complaint at the Police Post. On 12th October, 2016, the complainant saw the appellant and informed PW2 George Odhiambo Orodi, the chairman of Bodaboda riders. On the 14th October, 2016 at about 11.00am he saw him watching a gambling game and with the help of his colleagues they arrested the appellant and took him to the Police Post where he was re-arrested by PW6 No. 2008139675 APC Vitalis Sirengo.
9.The complainant was examined by PW4 Dr. Joseph Maundu of Police Surgery on 18th October, 2016. He found him having sustained a blunt injury to the left eye which caused a rapture to the eye ball causing total loss of vision to the left eye. He had a wound that had healed at the time of examination to the left parietal area of the skull. He had a scar on the left supra-orbit area of the skull. He had a scar on the left supra orbit area (above the eye) Fracture of orbital bone of the left side. The injuries were about nine (9) months old.
10.Upon being put on his defence, the appellant testified on the events of 14th day of October, 2016. That he was at a gambling kiosk when he saw a crowd. Suddenly, a man who had only one eye, a total stranger pointed at him. One of the people present grabbed him and sought to know why he had robbed the man with one eye. They beat him up and he was rescued by administration police officers. He denied having robbed the complainant.
11.The appeal was disposed through written submissions. It is contended that the charge was defective as charging the appellant under both section 295 and 296 was not correct. In this regard, he relied on the case of Mary Waithera Kimuiru versus Republic (2016) eKLR where the High Court stated that:
12.That no identification parade was conducted, a fact that made the conviction unsafe. That the incident having occurred at night and witnesses having not recalled the manner of dressing of the assailant, dock identification was worthless and the doctrine of recent possession was not established as the complainant did not tender any receipts to show that he was the owner and was in possession of items stated to have been stolen.
13.Further, that the motorist who took the complainant to Ushirika Hospital was not called to testify yet he was an essential witness. This meant that an important link in the prosecution’s case was broken.
14.The appeal is opposed by Respondent/State through Mr. Kiragu, learned Prosecution Counsel. It is urged that the appellant was charged with the offence of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code which called upon the prosecution to prove ingredients which were:
15.That the complainant was assaulted during the incident, he lost an eye, evidence that was supported by medical documents;that the appellant was well known to the complainant as a customer and PW2 was able to see passengers that the complainant carried on the fateful night as there was sufficient light.
16.That proof of the case was beyond reasonable doubt; corroboration of testimonies by the prosecution witnesses cured all arithmetic inconsistencies that could have arisen during trial as held in the case of Philip Nzaka Watu V Republic, [2016] eKLR.
17.This being a first appellate court, I have a duty to subject the evidence presented before the trial court to a fresh and exhaustive scrutiny to arrive at an independent decision on whether or not to uphold the appellant’s conviction. In re-evaluating the evidence, I should remember that I neither saw nor heard the witnesses as they testified hence I should give due allowance for that disadvantage. This duty was well captured in the case of Kiilu & Another V Republic, [2005] 1 KLR 174 where the court stated that:
18.Looking at the statement of the offence, the appellant was stated to have contravened section 295 as read with section 296(2) of the Penal Code that provide thus:Section 295:
19.The particulars of the offence as drawn state as follows:
20.In the case of Paul Katana Njuguna versus Republic, [2016] eKLR the Court of Appeal observed that:
21.From the reading of section 295 of the Penal Code, it is a statement explaining the meaning of the term “robbery”. It is a clarification in that respect.
22.Section 296 (2) of the Penal Code on the other hand provides for the penalty to be imposed. The provision includes what amounts to robbery with violence. Looking at the charge as framed, it is not indicated that the appellant committed two [2] separate offences, the offence preferred is a single transaction.
23.Section 382 of the Criminal Procedure Code provides that:
24.Although the formal complaint through the statement of the charge did capture both the definition and punishment section, the appellant understood what he was being accused of, denied the charge and mounted a defence to the accusation. In the circumstances, the charge was not fatally defective.
25.The ingredients of the offence of robbery with violence were stated by the Court of Appeal in the case of Johana Ndungu Vs. Republic, [1996] eKLR (Criminal Appeal No 116 of 1995) as follows:
26.In the case of Dima Denge Dima & Others vs Republic, Criminal Appeal No. 300 of 2007, it was stated that:
27.The complainant (PW1) testified to have been alone at the time of attack. He stated that one of his attackers had a knife while the other one had a pistol. A pistol is an implement/instrument that is designed to be lethal. A knife, though not intended to be dangerous, is capable of causing serious injury or even death. Therefore, the assailants were armed with dangerous instruments/weapons.
28.The individuals were stated to have been two [2] therefore the attacker had company of one person.
29.Evidence of the complainant that the attackers used actual violence upon him in that they struck and wounded him was proved by evidence of PW2, PW3 and PW5 who saw him soon after the attack and caused him to be taken to hospital. There is proof of the complainant having been seen at Kenyatta National Hospital on 19th February, 2016 with multiple cut wounds secondary to an assault. Subsequently, he was admitted at PCEA Kikuyu Hospital Eye Unit on 26th February, 2016 and he underwent an operation. Thereafter he was discharged on 29th February, 2016. This was evidence of the complainant having been wounded at the time of the act.
30.In his defence, the appellant denied having been the perpetrator. The question of identification is of a single witness. PW2 alluded to having seen the two [2] passengers the complainant carried at 8.00pm when he left the stage. That he hooted and flashed as a sign of greetings. That the complainant told him that the two (2) customers that he had carried are the ones who assaulted and robbed him.
31.Having left the stage at 8.00pm, there is no doubt the offence was committed at night. The trial court appreciated the fact of evidence of identification having been of a single witness, guided by case law namely Kiilu & Another V Republic, [2005] 1 KLR 174. The court rightly cautioned itself of the need to test with care evidence of a single witness.
32.In the case of Anjononi Vs Republic, [1980] eKLR the court stated that:
33.This was a case of recognition. The complainant stated that the appellant was his customer as he had transported him on several occasions and had known him for several months. On cross examination he stated that although he did not know his name, he could identify him by facial appearance and the injury that he had on his hand although he did not mention it in his statement.
34.PW2 on the other hand knew the appellant very well as both of them used to live at Kibera and he saw him being carried as a pillion passenger with another by the complainant the material date at 8.00pm.
35.On the question of an identification parade having not been conducted, ordinarily an identification parade is conducted to ascertain if the victim or witness can identify the perpetrator amongst other persons who are similar to the person. This was a case where the complainant led his colleagues to arrest the appellant who was subsequently handed over to the police. Conducting an identification parade was not necessary.
36.The complainant testified to have been in possession of cash, a cell phone and safari boots that were stolen but not recovered. The doctrine of recent possession as a basis of positive proof could not be applicable because there was no recovery.
37.The complainant faults the court for failing to find that essential witnesses should have been called to corroborate evidence of witnesses who testified. In particular he questioned why the motorist who was mentioned by PW1 was not called to testify.
38.Section 143 of the Evidence Act provides thus:
39.In the case of Keter vs. Republic [2007] 1 EA 135 the court held:
40.The stated witness was also mentioned by PW2 and PW5 The witness was alleged to have taken the victim to hospital while PW1 stated that when the police vehicle arrived the victim was transferred from the vehicle of the Good Samaritan to that of the police who took him to Ushirika Medical Centre then ultimately to Kenyatta National Hospital. In the case of Philip Nzaka Watu Vs Republic [2016] eKLR, the Court of Appeal expressed itself thus;
41.The role played by the witness was not major. There is proof that indeed the complainant was injured and taken to hospital. Therefore, failure to call the witness was not detrimental to the prosecution’s case.
42.On the question of circumstances surrounding the arrest of the appellant. Members of public who reasonably suspect a person of having committed an offence may effect arrest and hand the person over to the police. Therefore, there was nothing wrong with the manner in which the appellant was arrested.
43.A defence was put up by the appellant explaining how he was arrested but he did not mention anything to do with events of the material date.
44.On sentence, the law provides for death sentence. However, as clearly pointed out by the trial court, the circumstances of the case were aggravating, but, following the decision of Muruatetu (2017) eKLR, when courts were exercising discretion to mete out sentences other than death as provided, the option of a definite sentence was imposed.
44.In the result, I find no merit in the appeal. Consequently, the appeal is dismissed in its entirety.
45.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 21ST DAY OF MARCH, 2023.L. N. MUTENDEJUDGEIn The Presence Of:AppellantMr. Mutuma for the StateCourt Assistants - Evance/Mutai
