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|Case Number:||Criminal Appeal.86 & 87 of 2009|
|Parties:||Terry Goreti Wasike & Francis Simiyu Alias Alim Yusuf & Republic|
|Date Delivered:||23 May 2013|
|Court:||High Court at Bungoma|
|Judge(s):||William Kipsiro Tuiyot, Francis Gikonyo|
|Citation:||Terry Goreti Wasike & another v Republic  eKLR|
|Case History:||Appeal from judgment & conviction of Webuye Senior Resident Magistrate Court Webuye in criminal case No.799 of 2009 sentenced on 29/6/2009|
|History Docket No:||799 of 2009|
|History Advocates:||Neither party represented|
|Disclaimer:||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|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO.86 & 87 ALL OF 2009
TERRY GORETI WASIKE…………………………………..1STAPPELLANT
FRANCIS SIMIYU Alias ALIM YUSUF …………………2ND APPELLANT
(Appeal from judgment & conviction of Webuye Senior Resident Magistrate Court Webuye in criminal case No.799 of 2009 sentenced on 29/6/2009).
J U D G M E N T
“184(1) Notwithstanding the provisions of Parts ll and VII of the Criminal Procedure Code, a Childrens’ Court may try a child for any offence except for-
Quite clearly, the 1stAppellant was before a Court of proper jurisdiction.
“186. Every child accused of having infringed any law shall-
It is our view that a child can only benefit from the assistance contemplated by this section if it is demonstrated to the satisfaction of the Court that the child is unable to either afford or access legal assistance. But for this right to be more than notional, the trial Court has a duty to promptly inform the child of this guarantee and to invite the child to indicate whether or not he/she is able to obtain legal assistance.
17) When and what is the extent of the assistance to be provided? The Children Act has been hailed as one of Kenya’s most progressive pieces of legislation. It codifies many of the world’s best practices in respect to the Rights and welfare of the child. Indeed its preamble proudly and explicitly declares that one of its objects is to give effect to the principles of the Convention on the Rights of the Child and the African Charter to the Rights and Welfare of the child.
18) So as to place the provisions of Section 186 of The Children Act in perspective we need to understand the provisions of these two international instruments with regard to legal assistance to a child. Article 40(2) (b) of The Convention of The Rights of The Child (1989) provides:-
“i) Every child alleged as or accused of having infringed the Penal law has at least the following guarantees ………………………
ii) to be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence.” (Emphasis ours)
Compare this with Article 17(2) (c) of the African Charter on the Rights and Welfare of the Child which obligates State parties to the Charter to:-
Ensure that every child accused of infringing the Penal law …….
iii)shall be afforded legal and other appropriate assistance in the preparation and presentation of his defence.(Emphasis ours)
The African Charter imposes a greater obligation on the state parties as it expressly requires the State parties to ensure that the child is not only afforded legal but other appropriate assistance in the preparation and presentation of his/her Defence.
19) The text of our statute is somewhat unclear as to the exact nature of the assistance to be provided by the State. To illustrate this we again reproduce that section:-
“186. Every child accused of having infringed any law shall-
Given that a stated intention of the statute is to give effect to the two International Instruments we propose that an appropriate way of interpreting this obligation is by aligning it as much as possible to the provisions in those instruments that expand the guarantees available to the child. In taking this course, we are aware of the provisions of Article 2(6) of the Constitution, and also Article 53(2) of the Constitution that demands of the courts to be guided by the principle that: A child’s best interests are of paramount importance in every matter concerning the child. It makes sense to read in, the provisions of the International Instruments. Accordingly, we do hold that the assistance referred to in the latter part of Section 186 (b), and which the Government is obliged to provide, is legal assistance in the preparation and presentation of the Child’s Defence. The need to afford such assistance to a child would be informed, partly, by the inherent vulnerabilities of a child that, left on his/or her own, a child is unlikely to mount any or an effective Defence. A child’s mind is likely to be naïve, unsophisticated, lacking in legal knowledge and experience. The atmosphere in a Court room can also be confusing, perplexing and distressing to a child.
20) Although we never had the benefit of any argument on this point by counsels, we know that there is ever present a constraint in the resources of the State and it can be argued that it may not be possible for the State to provide free legal assistance to every child facing trial. Nevertheless, our view is that the need for legal assistance is acute where, like here; a child is involved and is accused of a serious infringement of the law with a possibility of substantial prejudice occurring. In that event, the State would be obliged to provide legal assistance. We venture to suggest that it is in circumstances like these where the provisions of Article 50(2) (b) of the Constitution apply. That Article requires that every accused person has a right,
“to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of the right promptly.”
The 1st Appellant was not informed of the guarantee that exists under Section 186 of the Children Act and we would, on this ground alone declare her trial a mistrial. This is notwithstanding that she appeared to have robustly participated in the proceedings by way of cross-examination and laying out her defence. But as will become apparent shortly even the prosecution case as presented was inadequate to sustain a finding of guilty against her.
21) We now turn to appraise the evidence presented before the trial Court. We start with the evidence on identification by PW1 and PW2. It was just after 9.30p.m. when PW1 stopped to give a lift to some “school children”. Undoubtedly darkness had long set in. We are not told that there was moonlight. The four passengers sat at the back seat of the vehicle. PW1 and PW2 say that they were able to positively identify the Appellants because the interior light of the vehicle was on. PW1 said,
“The interior vehicle light was on and one could see well inside the vehicle.”
While PW2 stated,
“I identified the 1st accused and the 2nd accused person. We were robbed at night but I managed to identify them as I had stayed with them for some time and the interior vehicles light had been switched on.”
“According to PW1 and PW2 when being cross-examined by the 1st and 2nd accused persons, they were able to pick the two suspects from identification parade because the suspects had been with them for some time and even talked to them during the unfortunate incident.”
“I was held and a rope on a wire put on my neck and lightened. I saw you with the aid of the interior vehicle’s lamp which I managed to switch on.”
From this evidence the lights were switched on after the attack on PW1 and PW2. Then on would be distressful moments.
“The next morning a police officer called me from the cells and all the women from the cells were paraded outside. I was told to take a position in the line and then picked or identified by two men. I did not know I was given a form to sign. I signed the same.”
On his part the 2nd Appellant said,
“An identification parade was done on 20.6.08. I signed the parade forms. The parade had several people. I was told to pick a place in the parade of my own choice.”
“I had seen the suspect when I conducted the parade. They were held in a secluded place before being brought out to identify you.”
“When I arrested you, you were booked in the cells. During the identification parade, the witness had no chance to see you. They were locked in the C.I.D. office.”
This Court believes both PW4 and PW6, more so because the Appellants did not take this up in their cross examination of PW1 and PW2.
This is what he said;
“After a while (sic) I saw near my gate three people, two young men and a lady. They were coming towards my home. One of the young men was carrying a container. When they neared the police arrested them and made them sit down.”
His wife BRIDGIT (DW5) told a story of how on 19/06/2008 she saw a lady and 3 young men push a vehicle to a borehole and washed it. The young lady was the 1st Appellant and one of the three men was the 2nd Appellant. The vehicle was the complainant’s stolen vehicle.
29) How was the Court to receive and treat the evidence of DW4 and DW5? This Court was recently confronted with a similar question. Justice Tuiyott had this to say in Busia Criminal Appeal No.105 of 2012 Aloicy Nyongesa vs. Republic;
“……..once an accused gives sworn evidence that incriminates one of his co-accused then on that evidence he is for all purposes a witness for the prosecution. For that reason the trial Court must give the co-accused an opportunity to test that evidence by way of cross-examination. This is in fact a fundamental right of an accused person, the right to challenge evidence (Article 50(2) (b) of The Constitution 2010). That the co-accused has been afforded this right must be duly on record.”
30) The Appellants were not afforded the opportunity to cross-examine DW4 and DW5 and we would readily agree with Counsel that, the portion of their evidence that incriminated the Appellants would be worthless. The following passage in the decision of the Court of Appeal in Mattaka & others–vs- Republic  E.A. 495 p. 503 illustrates this;
“we agree, but we would add that we think that the failure of a trial Court to allow cross-examination of the accused by another will ordinarily result in the quashing of a conviction when the trial Court has relied on the evidence on which it was sought to cross-examine, unless without that evidence there is an overwhelming story case against the accused.”
The trial Court should have completely disregarded that evidence. Instead it repeatedly relied on it to demonstrate the strength of the prosecution case.
31) Having said that, there is still other evidence that incriminates the 2ndAppellant. Whilst PW6 was still at the home of DW4, the Appellants emerged from a nearby maize plantation. And the 2ndAppellant was carrying a yellow plastic container which contained a liquid that was later confirmed to be petrol. That alone may not have meant much. But on being arrested, he was found in possession of a cell phone Motorolla c.50 belonging to PW1. It had been stolen at the time of the Robbery.
32) We had found that the evidence of identification was not sufficiently assuring and required to be propped up by some other evidence. In respect to the 2nd Appellant, other evidence was provided when he was found red-handed with the stolen cell phone barely 24 hours after the robbery. It did not help his case that he was also found close to a place where the stolen car had been recovered and he was carrying petrol. As for the 1st Appellant not much can be made of her presence with the 2nd Appellant: what remains is the evidence of identification on which we do not think a safe conviction can be returned.
33) We still think it necessary to comment on the argument by the Appellants’ Counsel that the Trial Magistrate did not consider their Defence. Both had put forward Alibi defences. This was raised for the first time when the Appellants were giving their unsworn statements in Defence. In such circumstances, the police or prosecution do not have a fair opportunity of checking and testing the alibi. What the trial Court must then do is to weigh the prosecution evidence against that of the alibi evidence. The alibi evidence of the 2nd Appellant is what he said in his testimony: that at the time of the incident he was asleep at his aunt’s home in the company of Joel Simiyu and John Mwangale. That was all. No further evidence was called to back this. In our assessment the evidence of identification, possession of recently stolen item and possession of petrol at a place close to where the stolen vehicle had been recovered, put together, far outweighs the Alibi evidence of the 2nd Appellant.
Reading of section 296(2) of CPC
35) A simple reading of Section 296(2) reveals the elements of the offence of Robbery with Violence. An offence under this Section is committed when the offender robs and is either:-
36) In both counts, the Appellants had been charged with committingthe offence jointly with others not before Court while armed with a dangerous weapon “namely wire” and then used actual violence on the victims. Counsel for the Appellants argued that a wire is not a weapon. The word weapon is not defined in the Penal Code. That word must be assigned its ordinary meaning. The Concise Oxford Dictionary (Ninth Edition) defines a weapon to mean, inter alia,
“a thing designed or used or usable for inflicting bodily harm (e.g. a gun or cosh).”[Emphasis ours]
There is evidence that wires were used to strangle the complainants. The wires were being used to inflict bodily harm on the complainants. Ordinarily a wire would not be a weapon but it becomes one when used, like in this instance, to cause bodily harm.
37) But even if we were wrong the other elements of the offence of robbery with violence were present. The 2nd Appellant robbed in the company of three other persons and during and after the robbery strangled the complainants, violently ejected them out of the car and threw one of them into a river. These were overt acts of violence.
38) The result is that, on our own appraisal of the evidence, the 1stAppellant’s conviction was unsafe. On the other hand the evidence against the 2nd Appellant was overwhelming and we must, as we now do, uphold the conviction.
39) There is one aspect of the sentence imposed, that calls for our intervention. The following is part of Courts order on sentence,
“Each of the 1st and 2nd accused persons having been convicted in counts 1 and II, are sentenced to suffer death as provided by the law.”
It is not clear whether the Magistrate imposed a death sentence on each count. A sentence order must be unequivocal. As a matter of good practice, where an offender has been convicted of more than one count of a capital charge then the Court shall impose a sentence on one count and leave the sentences on the other charges in abeyance (Ganzi & other –vs- Republic , KLR 52). We shall follow this practice.
40) The trial Court imposed a death sentence. We see no reason to interfere with it. The robbers threw one of the complainants into River Nzoia and had it not been of the complainant’s gallant efforts he would have drowned. The robbers were ruthless and heartless. So we uphold the sentence imposed save that we now clarify that it is in respect to count one. Sentence on count two is held in abeyance. Accordingly, the 2nd Appellant will suffer death for count one as by law provided.
41) In respect to the 1st Appellant we quash her conviction and set aside the sentence. She is now set at liberty unless otherwise detained for some lawful reason.
DATED AT BUNGOMA THIS 23rd DAY OF MAY 2013.
IN THE PRESENCE OF:
…………………………………………………………………FOR THE STATE
J U D GE