Amos Kibet v Republic [2019] KEHC 3535 (KLR)

REPUBLIC   OF KENYA

IN THE HIGH COURT  OF KENYA AT KITALE

CRIMINAL APPEAL NO. 28 OF 2009

(Being an appeal arising from  conviction and sentence in Kitale Chief Magistrate's court  criminal case No.  3318 of 2006 delivered by P.N. Gichohi - PM on 16/4/2009)

AMOS  KIBET .......................................APPELLANT

VERSUS

REPUBLIC..........................................RESPONDENT

J U D G M E N T

1. This matter has  had a long history.  The same was heard by a 2 bench Judge and dismissed.  The appellant appealed and the Court of Appeal ordered that the appeal be  heard afresh.

2. The appellant  had been charged with 3  counts of Robbery with Violence contrary to Section 296 (2) of the Penal Code.  He was convicted on all the three counts and sentenced to suffer death.

3. Before looking at the merits or otherwise of the  appeal it shall be appropriate to summarise the evidence as presented during trial.

4. PW1 Joseph Thuo Maina testified  that he was a taxi driver of Motor vehicle Reg. No  KAM 842D owned by one Samuel Kamau. The same operated within Kitale town. That on 29/9/2006 he was approached by some people who wanted to be taken to Kibomet. He obliged and charged  them Kshs  150. As they approached Kibomet   they decided to change cause and told  him that they should go to Ambwere  Stalls a place they call Kwa Mayor. He obliged and agreed to charge the Ksh 250. They went upto a place near somebody's house where he was told to stop and put off the vehicle lights.

5. Suddenly, he was ordered to lie down and his hands tied from the back. They then put him in the car boot and drove off. After a while they stopped and he  learned some women talking . He screamed and they opened for him. He realised that he was at Kesogon area. The police were called as well as the owner of the vehicle.  The photographs  of the vehicle were taken by the scene of crime officers.

6. Later  while at Kitale town he was called by someone to identify his driving  licence from a person they had arrested. He rushed to the scene and realised that it  was the person who had robbed him earlier own. The appellant was searched and  other assorted items recovered. He was then taken to the station and subsequently charged.

7. PW1 was adamant that he knew the appellant as he was the one who had requested for the taxi and that even while fueling at Kiboswa petrol station he was able to identify him.  He sat  in the front seat.

8. PW2 Samuel Kamau Kamuki testified that he was the owner of the motor vehicle KAM 842D which he had given PW1 to use as a taxi that night.  He was to travel to Kisumu the following day. PW1 did not return the vehicle in the morning and he decided to look for him. PW1 telephoned  him that he had been hijacked and was at Kesogon. He went there with the police  and had the vehicle photographed. He was however unable to get his  driving licence  which  was behind the sun riser of the vehicle.

9. Later while in town on 4/10/2006 a tout came asking  him whether he had lost his  driving licence. He told him that someone had been arrested with it.  He rushed to the scene and while searching the appellant, among the items recovered were his driving licence.  There was equally  an expired Insurance licence. The appellant was then arrested and taken to the police station.

10. PW3 Josephine Nyaboke Ongera a trader at Kesogon testified that she had closed her shop at 5. 30 pm and was at her house which was behind the shop 3 youths came asking for milk. Earlier she had sold milk to them.  She complied .  In the process one of them remained behind and told her that she was to be killed.  He had a pistol. That they had been paid Kshs 20,000/=. The rest of his friends  were armed with pangas.  They tied her with sisal  and forced  her to lie down.  They took several assorted items as enumerated in the charge sheet.

11. She stated that she was able to  identify one of  them who had a pistol as he had earlier  bought  soda from her shop.   He had told her that he  worked at Posta at Kesogon.

12. She reported the matter at the police  station.  While at the police  some information came  that some suspects had been arrested. She went to Kitale police station where she identified the appellant. She said that he had taken soda at her place 4 days ago.

13. PW4 P.C. Luke Malwa  attached to CID Kitale produced the exhibits on behalf of CPL Paul Ambuto who had carried out the investigations.

14. When put on his defence the appellant gave unsworn evidence denying the charge. He said that  on 5/12/2006 at 10. 30 PM he was at   Villa club when he was arrested by 3 police officers.  He was with his girlfriend called Elizabeth. He was taken to Kitale police station and booked and placed in the cells. The following morning he was interrogated concerning  Elizabeth and he told then that she was his  girlfriend. Later he attended a identification  parade. Elizabeth was arrested but released Elizabeth was to  be a witness but she told him that he would never come to testify. He denied the charges.

Analysis and Determination

15. The court has perused the proceedings herein as well as the handwritten submissions by the appellant.  The appellant  has generally attacked the  veracity of the prosecution case touching among others the question of identification and general contradictions of the evidence as presented.  The State apparently did not file any written submissions as ordered.

16. The duty of this court nevertheless is to re-evaluate the evidence afresh with a rider and caution that it did not have the benefit  of seeing and hearing  the witnesses.

(See Okeno Versus Republic (1972) E.A. 32.

17. The substantive issue to be considered is whether the prosecution  was   able to show that the complainants clearly identified the assailants.  This is of course a key plank in the offence.

18. Having looked at the evidence as presented I find that this question was clearly on the affirmative despite the line of submissions taken by the appellant.  PW1 explained that the person who approached him to take them to Kibomet was the appellant.  He spoke with him and sat infront of the car.  They also went to  fuel the  car at Kiboswa where there was electricity.  Further as they left for Kibomet then Ambwere , he was ordered to stop and the lights inside the vehicle were on.

19. With this line of evidence one can doubt whether the witness would be unable to recognise his assailant. There was sufficient time  and light for the witness to recognise them.

20. PW3 equally gave the same  reason. She said that the assailants had  not covered their faces as they talked to her. Infact it was the appellant who was  armed with a pistol.  Earlier on in the day she had seen him and even 4 days prior to this he came to her place of business and told her that he worked with Post office at Kesogon.

21. PW2 testified that he found the appellant in  possession of his driving licence when he was arrested.  Although the circumstances of his arrest by the public was not clearly explained the appellant was however   when searched found in possession of assorted items which included PW2's driving licence.

22. The sub total of the evidence clearly points out to the fact that the key witness PW1 and PW3 identified the appellant.  I find the two witnesses credible in their testimony.

23. For the foregoing reasons the appeal is dismissed. In line however with the Supreme Court decision in Francis Muruatetu & Another V Republic (2017) eKLR I shall set aside the death sentence  imposed by the trial court and permit the appellant to mitigate afresh so as to consider an appropriate sentence.

Orders accordingly.

Delivered, signed and dated at Kitale this 25th day of March, 2019.

_______________

H.K. CHEMITEI

JUDGE

25/3/19

In the presence of:-

Mr Omoria for Respondent

Appellant – present

Kirong – Court Assistant

Judgment read in open.