IN THE COURT OF APPEAL

AT BUSIA

(CORAM:  ONYANGO OTIENO, AZANGALALA & KANTAI, JJ. A)

CRIMINAL APPEAL NO.  409    OF 2009

BETWEEN

BENEDICTO KWARULA INGOSI .........................................  APPELLANT

AND

REPUBLIC …............................................................................RESPONDENT

      (Appeal from a  Judgment of the High Court of Kenya at

       Kakamega,(F. Muchemi  & J. Chitembwe, JJ)  dated  30^th June,  2013

in

HCCRA  NO.  87 & 88    OF 2005)

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  JUDGEMENT OF THE COURT

The appellant, Benedicto Kwarula Ingosi was originally charged with two others  before the Chief Magistrates Court, Kakamega, with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code in that :

“On the 9^th day of November, 2004 at Mukango village, Lukusi sub location Ivihiga location in Kakamega District  within the Western Province, jointly  with others not before court, while armed with dangerous weapons namely pangas and an axe robbed Manase Wachira of cash Kenya Shillings eight thousand  (8,000/=), one bicycle make Avon and assorted shop goods all valued at Kshs. 16,000/= and at or immediately before or immediately after the robbery wounded the said Manase Wachira.”

There was an alternative charge which did not affect the appellant who was the 3^rd accused in that court.  A trial was conducted by the learned Principal Magistrate (S. M. Kibunja) who in a judgement delivered on 12^th July 2005 convicted the appellant and sentenced him to death.   The appellant was dissatisfied with those findings and appealed to the High Court  of Kenya at Kakamega.   The appeal  was heard and dismissed by Florence M. Muchemi and Said J. Chitembwe, JJ, in the judgment delivered on 30^th June, 2009.   Those  findings did not sit well with the  appellant hence this appeal.   Being a second appeal we must remember our duty which is not to retry the  case or re-evaluate the evidence .  Our duty as a second appellate court is not to interfere with concurrent findings  of fact by the trial court and the first appellate court unless the findings were bad in law for being perverse which is to say that no reasonable tribunal  could on the evidence have arrived at such findings – See the cases of Thiongo v R [2004] 1EA 333 and Muriungi v R [1982 – 1988] 1 KAR 360.

 In the Memorandum of Appeal drawn by his lawyers Wanyama & Company Advocates the appellant took four grounds of appeal.   These were to the effect that the learned judges of the first appellate court erred in failing to evaluate and analyse the evidence  thereby arriving at an unfair  decision; that the learned judges  erred in failing to consider the  possibility that identification by recognition was mistaken; that the learned judges erred in failing to caution themselves that circumstances for identification were difficult and finally that the learned judges erred in relying on the evidence of a single witness.

The case for the prosecution was through the evidence of seven witnesses.   Manase Wachira (PW2) (Wachira) testified that in his usual occupation of selling shop goods from his bicycle he on 9^th  November, 2004 visited his brother Francis  Salim Thuo (PW4) (Thuo) and collected  goods for sale from him as was their usual practice.   He peddled off on his bicycle laden with the goods he had and managed to make sales of goods  worth Kshs. 8,000/=.  On the the return journey  back he reached a river at Mukunga, crossed it and was pushing the bicycle uphill when he noticed four  people approach him – the 1^st and 2^nd accused before the trial court  came from one side of the road while the appellant and another person who was not charged in court approached from the opposite side .  It was 7.30 p.m.  and because there was moonlight Wachira was able to recognize all the four people.   He told the court  that he knew 1^st the accused and  the appellant who he used to see on the road  patching pot poles  for a fee while the 2^nd accused was a local charcoal seller.   He described the various weapons the four people  were carrying – the 1^st and 2^nd  accused had a panga each, the appellant had an axe and the  one not before the court  had a slasher.   They surrounded him and he was asked for money by the 1^st accused who proceeded to cut him on the  head knocking him down.   The appellant cut him on the  right leg with the axe almost  severing that leg.   The 4^th person lay on him and proceeded to cut his neck in the butchery style.  Just then a motor vehicle happened by and the four attackers fled the scene  - taking with them the bicycle and a crate of goods but forgetting the slasher behind.   The motor vehicle slowed down but then drove off.   The illumination created by the motor vehicle headlights caused more trouble for Wachira as the attackers returned and vowed to finish him off as he had recognized them.  So they proceeded to cut him up so severely that he lost consciousness.   They left him for dead.   Upon regaining consciousness at 2.00 a.m. Wachira found himself in a  sugar plantation and his forlorn cries for help did not attract anybodys' attention  and when it did at 6.00 a.m those  who would come by would look at  him and leave, probably for the frightful sight they would encounter.   His brother Thuo did in the process  receive information and came to his  rescue.  A report was made to police  and Wachira was taken first to a  dispensary and thereafter to Kakamega Provincial General Hospital  where he was admitted for one month  and thereafter transferred to Kapsabet hospital where he was admitted for  two months.   He was visited by police while in hospital and he gave  the names of the attackers to the police.

 In cross – examination Wachira stated on the issue of identification of the 1^st accused and the appellant :

“...I used to be a conductor in my brothers vehicle and we would give you some money on finding you filling the potholes.  You are the one who gave me your names  during that time …..when people came in the morning  I gave them four names who attacked me (sic).  I gave police your names.  I had seen you well through moonlight....

And in re-examination:

“...the moonlight was bright and one could see well one who is four metres away and accused were next to me  when robbing and attacking me.   I saw and identified  accused by their physical appearances as I knew them  before....”

Thuo testified and confirmed being the owner of the bicycle stolen  from his brother Wachira.   He had given him goods to sell on 9^th November, 2004 but he did not return.   He later received information  that Wachira had been attacked and injured and he took him to hospital. 

Ochango Benard (PW1) (Benard), a Clinical Officer  at Kakamega Provincial General Hospital  saw Wachira for medical assessment.  This was 156 days after the incident.   He confirmed various injuries suffered  by Wachira which he certified to have caused grievous harm.

No. 820247 A. P. Corporal George Mwanje  received a report on the morning of 10^th November, 2004 from Thuo that Wachira had been attacked and injured.  He assisted in taking Wachira to hospital and in the process Wachira gave him  the names of the people who had attacked him.   He arrested all  the three people who were charged before  the Chief Magistrate including the  appellant and recovered the stolen  bicycle which had been hidden in a sugarcane plantation.   This officer handed over the matter to Criminal Investigations Officers including No. 61403 Police Constable James Kiogora who testified that  upon receiving information he visited Kakamega  Provincial General Hospital on 10^th November, 2004 where he met Wachira who narrated  the incident to him and gave him the names of three persons  who had attacked him  and who he later charged with the  offence relevant to this appeal.   This witness was also among those who recovered the bicycle, a slasher and other exhibits.  There was other evidence presented by the prosecution but as this appeal only relates to this appellant it is  not necessary to refer to it. 

The trial court received this evidence  and found that the prosecution had established a prima  facie case against the appellant who was therefore put on his defence.

In an unsworn statement the appellant testified that on 13^th November, 2004  he  was asleep in his house when at 3.45 a.m he was awakened by a knock at the door and  upon opening was confronted by two  police officers who handcuffed him,  arrested him and took him to the police station where he was  detained and later charged in  court.  He denied ever  engaging in the work alleged by the complainant Wachira and wondered why stolen  items were not found on him.

In the judgement which we have referred to the trial magistrate was satisfied that Wachira  was attacked on 9^th November, 2004 and robbed of money, a bicycle and various shop goods given to  him to sell by his brother Thuo.   The trial magistrate after warning himself of the danger of mistaken identity in an  incident like the one before him  that occurred at night stated:

“...However from the graphic and detailed information given  by PW2 to the court on how he  identified and recognized each of the accuseds' as among the four robbers am satisfied that there was sufficient occasion for him to see and identify the attackers through the moonlight.   He said he could see well four metres away and the attackers had to come near him while cutting and  hacking him and robbing him  and as accused were people he knew he recognized them...

The moonlight was sufficient and the incident took long as the robbers had first left  the scene on seeing the headlights of a vehicle which also enabled  PW2 to see accuseds' and the other attack (sic) ….”

Mr. O. M. Wanyama, the learned counsel  for the appellant who was assisted  by Mr. V. O. Osango  appeared before  us and argued the appeal.   Ground  1 was abandoned.   On ground 2  learned counsel faulted the learned judges and submitted that there  was a possibility that the  appellant was framed because, according to counsel, he was previously known  to PW2 Wachira and PW4 Thuo who had seen the appellant on the  road undertaking work of  filling potholes.

On the combined grounds 3 and 4 of appeal learned counsel submitted that circumstances for identification were difficult because there was no other evidence to support identification.  For all these reasons counsel urged that the appeal be allowed. 

The learned Assistant Director of Public Prosecutions Mr. C.A. Abele supported conviction and sentence  and submitted that the first appellate court properly re-evaluated  the evidence and independently  arrived at a correct decision.  Counsel  submitted that the two courts  arrived at correct findings of  fact and the facts could not be  faulted.

We have considered the whole matter, the grounds of appeal, the  submissions of counsel and the  law.

On recognition,  although the  evidence of identification should  be tested with great care especially when it is known that the conditions favouring a correct identification may be difficult  (See Abdullah bin Wendo & Another v R (1953) Vol XX 166 and Cleophas Otieno Wamunga v R Criminal  Appeal No. 20 of 1989) the evidence of  the complainant was given in graphic detail.   He described each of the persons who attacked  him by name and gave  details of the weapon each of the  assailants was armed with.   He gave details of the role played by each assailant and  the injuries each of the assailants inflicted  on him.  There was moonlight enabling the complainant to observe and recognize the assailants who were people he knew because he had previously interacted with them.  Recognition is in law the best form of identification because it is more reassuring – See Anjononi v R [1980] KLR 59.

If that evidence of  recognition was not enough there is additional evidence of a motor vehicle  happening at the scene whose  headlights illuminated the place thus enabling the complainant to observe  his attackers who fled the scene only to return  moments after the motor vehicle had passed.   The complainant stated:

“.....I held the slasher but then a vehicle came and that person and accuseds ran away.   The  fourth one left the slasher with  me.   This is the slasher mfi – 2.   They took with them the bicycle  and crate I had carried goods on.

When the vehicle came it slowed down but  left.   The four people came back and they said they will finish me as I had recognize (sic) them and they cut me severally all over  the body.   I became unconscious...”

The complainant gave  the names of  his attackers to the police  (PW6 and PW7) the following day on regaining consciousness and further gave the names to his brother Thuo (PW4).

The first appellate court on review of the evidence was satisfied that the complainant positively identified his attackers who robbed and injured him.   That court therefore dismissed the first  appeal.   We are satisfied that the first appellate court properly  carried out its duty of review and re-evaluation of evidence.  This  appeal has no merit and we dismiss it accordingly.

Dated and Delivered at Kisumu this   9^th day of  May, 2014.

J. W. ONYANGO OTIENO

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JUDGE OF APPEAL

F. AZANGALALA

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR