|Criminal Appeal 298 of 2009
|Ibrahim Kigame Agevi & Jackson Mafwabi Makoye v Republic
|25 Mar 2011
|Court of Appeal at Eldoret
|Riaga Samuel Cornelius Omolo, Samuel Elikana Ondari Bosire, John walter Onyango Otieno
|Ibrahim Kigame Agevi & another v Republic  eKLR
|Appeal from a judgment of the High Court of Kenya at Bungoma (Mbogholi & Ochieng, JJ.) dated 19th February, 2009 in H.C.CR.A. NOS. 55 OF 56 OF 2009
|Individual v Government
|History Docket No:
|55 & 56 OF 2009
|Amraphael Mbogholi-Msagha, Fred Andago Ochieng
Criminal Practice and Procedure – robbery with violence – appellant convicted and sentenced to death – appeal against conviction and sentence – grounds that the entries in the charge sheet in respect of the case number and the date the appellants were taken into court were not the same as those in the proceedings – whether the appellants suffered prejudice as a result of such differences.
Evidence – identification evidence – identification parades – claim that a proper identification parade was not conducted – failure of the officer who had conducted the identification parade being called to testify as a witness – factors the court considered while convicting on the evidence of identification parades – whether the conviction of the appellants could stand with the failure of the officer who conducted the identification parade to be called as a witness.
|Appeal allowed for the first appellant Appeal dismissed for the second appellant
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
CRIMINAL APPEAL NO. 298 OF 2009
JACKSON MAFWABI MAKOYE .............APPELLANTS
“On the 26th day of November, 1999 at Bungoma Township in Bungoma District within Western Province, jointly with others not before court, while being armed with a dangerous weapon namely AK assault riffle, robbed Jannefer Nderitu two blouses, twenty kilogrammes of sugar, one watch make Seiko 5, one clear tone lotion, one black long trouser, four compact cassettes and cash money Kshs.20,000/= the property of Jannefer Nderitu and at or immediately before or immediately after the time of such robbery used physical violence to the said Jannefer Nderitu”.
“As the appellants were identified at identification parades, the appellants were not right to have asserted, as they did, that theirs was only dock identification.
“1. That the appellate Judges erred in law and in fact that the contents of the charge sheet with regard to the court file number and the proceedings court file number are different.
“That, the two courts below misdirected themselves in law and fact by failing to warn themselves adequately as to the risks of aims (sic) taken identification by the prosecution side”.
Joseph Nderitu (PW1) was at the relevant time operating a saw mill at Nyeri and Karatina towns while at the same time running a transport business. He had bought a tractor from Mumias Sugar Factory. On 25th November, 1999 at around 7.30 p.m., he was at Bungoma and had gone there to load that tractor onto a lorry which was near Marell Academy. He was with his sister Rose Nyawira (PW3) and their friend Jennifer Nderitu also known as Jennifer Nyawai (PW2). They had gone there in Nderitu’s vehicle registration number KAL 551X Toyota Surf. It was not possible to load the tractor on to the lorry at that sport near Marell Academy, so he moved the exercise to Total Petrol Station at Kanduyi. He got into his vehicle. Rose and Jennifer were in his vehicle. Before he started to go, he saw the tractor driver struggling. He left Rose and Jennifer in his vehicle to go and check what was happening. Before he reached the tractor it took off and followed the lorry to the Petrol Station. On returning to his vehicle, he found two people standing on each side of his vehicle. He checked those people and noted that one had along coat, the second one had a jacket while the other two were casually dressed with one having a muslim cap. The person with a long coat produced a gun – an AK47. PW1 realized those men were robbers. He ran away leaving Rose and Jennifer in the vehicle of which door he left open. One of those men who had a gun chased him but only for a short distance. He ran to Bungoma Police Station where police officers in their car together with him tried to trace the vehicle in an attempt to intercept it and the thieves but in vain. Meanwhile, those men went into the vehicle, one, who Jennifer and Rose identified in court as Ibrahim Kigame, sat on the driver’s seat. Rose who had been seated in the passenger’s seat was forced to move to the back seat. They drove away with the two women. There is evidence that while in the vehicle, they talked to the two women and at one time they assured the two women that they would not injure them. They drove the vehicle along back roads and picked another person from one of the houses. That man was wearing a muslim cap. Thus, there were four attackers in the vehicle and two women Jennifer and Rose. After driving the motor vehicle for over one hour, they came to a bridge and stopped the vehicle as the vehicle had had an engine knock due to over heating. The men searched Rose and Jennifer. They took from them, Kshs.20,000/=, two leather jackets, one belonging to Jennifer and one to Rose. They also took three trousers, one blouse, skirt and sugar, motor vehicle radio cassette and thereafter abandoned the motor vehicle and the two women inside it. At about 6.00 a.m. a cyclist came by them. They asked him to go and call police for them. He agreed, went and called police. Police went to the scene and towed the vehicle to Kimilili Police Station where they made a report. Joseph was told the vehicle had been recovered and was at Kimilili Police Station. He went to Kimilili Police Station where he found the vehicle and the two women. Five days later, on 30th November, 1999, Cpl. Robert Ndutura (PW4) then of CID Bungoma together with other police officers acting on information, went to a kiosk built of mud which was about 1½ kilometers from Kimilili. They raided it at about 10.00 a.m. The kiosk had two rooms. In the first room, they found Jackson Mafwabi Makoye, the second appellant in this appeal. He was with his wife. In that room, the police officers found a black jacket. In the next room they found the first appellant, Ibrahim Kigame and Onesmas Mbugi who absconded at the commencement of the trial. First and second appellants led the police officers to Pius Ngutuku Khaemba, who died after lodging his appeal in the superior court but before the hearing of that appeal. All were arrested and taken to Bungoma Police Station. We note that Cpl. Robert said in evidence that when he went for the appellants and their colleagues, he knew that they had been involved in several cases of robbery including the relevant one. The police officers took the black jacket, the cap worn by the first appellant at the time he was arrested and other items, some of which were not relevant to the matter before us. Later, it would appear from the record that identification parades were organized for Joseph, Jennifer and Rose to see if they could identify their assailants. Each of the appellants was allegedly identified at that parade. One of those arrested, Ngutuku, is alleged to have given an inquiry statement to the police but that statement was not admitted by the trial court and is thus of no consequence here. They were thereafter taken to court and charged as aforesaid.
We have reproduced the grounds upon which the appellants rely in this appeal. Mr. Chemoiyai, the learned counsel for both appellants highlighted those grounds whereas Mr. Oluoch, Senior Deputy Prosecution Counsel submitted that the convictions were proper in the circumstances of this case notwithstanding that the police officer who conducted the alleged identification parades at which both appellants were identified by Joseph, Jennifer and Rose was not called as a witness and the parade forms were not produced as exhibits.
In our view, the complaint based on the first category above cannot stand. The record shows clearly that Criminal Case No. 2542 of 1999 was consolidated with Criminal Case No. 163 of 2000 and that must have resulted in the difference between the number of the case in the charge sheet and that in the proceedings. This is clearly demonstrated by the fact that in the charge sheet before us there are three accused persons whereas in the proceedings there are four accused persons – Onesmus Mbugi alias Njiru is not featuring in the charge sheet whereas he is the fourth accused in proceedings. He may have been charged separately in the first instance. At page 7 of the record, the prosecution told the court:-
We think the issue of identification is the main issue of law in this appeal. As Joseph, Jennifer and Rose, all stated that they had not seen the appellants prior to the incident, the appellants were thus strangers to them when the incident happened. Joseph said the robbery took place at 7.30 p.m. whereas Jennifer and Rose said they were attacked at about 7.00 p.m. Joseph’s evidence on identification was rejected by both courts and we think properly so. They were thus convicted on the evidence of identification by only Jennifer and Rose. These two women were with the appellants for a fairly long time, but still the police rightly found it necessary to have identification parades conducted to enable them point out their assailants. As we have said, that was the proper thing to do for otherwise, their evidence of identification would have remained that of dock identification only. The law is settled, that in general, identification of a suspect who was a stranger at the time the offence was committed, which was not followed by the witness describing the suspect to the police who would organize a properly conducted identification parade at which the witness is afforded an opportunity to affirm his identification by pointing out the suspect, is a dock identification which in some cases is regarded is worthless. In the case of Njoroge v. Republic (1987) KLR 19, this Court stated:-
“It is well established that the Director has discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. First, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but the duty to call any person whose evidence appears essential to the just decision of the case. Thirdly, while the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled, under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.”
First appellant was convicted on the evidence of that identification which we have held was no more than dock identification, together with evidence that a muslim cap that one of the attackers wore, was found in the house of Pius Ngutuku Khaemba. Indeed Jennifer said in evidence:-
That however, is not the case with the second appellant Jackson Mafwabi Makoye. Against him there was added evidence and that was that the robbery took place on 25th November 1999. One of the items that Jennifer lost was a black jacket which she identified in court vividly as her jacket. On 30th November 1999, Cpl Robert stormed the first room of the Kiosk where he found the second appellant and in that room Jennifer’s black jacket was found. Second appellant was in that room with his wife only. The finding of a black jacket stolen from Jennifer during robbery gave an added dimension to the case against the second appellant. He was thus found in possession of recently stolen properly. He never gave any explanation as to his possession of the property and thus he was the thief. In dealing with this aspect of the case, we are aware that though the trial court alluded to it and treated it as corroboration of the complaint’s evidence, the superior court made no reference to it at all. We are however, in law entitled to revisit it in cases where we find the first appellate court failed in its duty to fully analyse and evaluate the case afresh as is apparent here. In the case of Njoroge vs. Republic (supra) this Court stated:-
2. If the first appellate court fails to carry out that duty, it becomes a matter of law on second appeal whether there was any evidence to support the conviction. Misdirections and non-directions on material points are matters of law.”
In conclusion, the appeal lodged by the first appellant Ibrahim Kigame Agevi is allowed, conviction quashed and sentence set aside. He is set at liberty forthwith unless otherwise lawfully held. The appeal lodged by the second appellant Jackson Mafwambi Makoye is dismissed. Judgment accordingly.
Dated and delivered at Eldoret this 25th day of March, 2011.
R. S. C. OMOLO
JUDGE OF APPEAL
S. E. O. BOSIRE
JUDGE OF APPEAL
J. W. ONYANGO OTIENO
JUDGE OF APPEAL