Benson Otieno Warinda v Republic [2013] KEHC 1231 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA.

HIGH COURT CRIMINAL APPEAL NO. 37 OF 2011.

BENSON  OTIENO  WARINDA ………………………..APPELLANT

VERSUS

REPUBLIC ……………………………………………RESPONDENT.

(BEING AN APPEAL ON CONVICTION  AND SENTENCE  IN CRIMINAL CASE NO. 1719 OF 2009 IN BUSIA CHIEF MAGISTRATE’S COURT- HON. E. H.KEAGO, SRM)

J U D G M E N T.

The Appellant, Benson  Otieno  Warinda, was arrainged  before the Lower Court on 2. 11. 2009 and charged with the offence of robbery with violence contrary to section 296 (2) of the Penal code. The Particulars set out in the charge sheet are that on the 30th September, 2009 at about 3. 00 am at Western Cycle Mart area, in Busia County, with another not before court, robbed Patrick Taabu Simoro of two blocks of TVS motor cycle, three head lamps of Bajaj motor cycle, four TVS motor cycles all valued Kshs.362,000/= and immediately  after the time of such robbery wounded Patrick Taabu Simoro who was acting at that time as a watchman for Robert  Juma. The Appellant also faced a second charge of having suspected stolen property contrary to section 323 of Penal Code in that on the 13. 10. 2009 at about 12. 15 pm in Busia County having been detained by NO.79935  Cpl. John  Onyango, a police officer in exercise of powers conferred by section 26 of the  Criminal  Procedure Code, was found in possession of one Nokia mobile phone make 2720 valued at Kshs.6,000/= believed  to have been stolen or unlawfully obtained. The Appellant entered a plea of not guilty to both the counts.

At the conclusion of the hearing during which the prosecution called seven witnesses and the Appellant gave a sworn statement, the Appellant was found guilty on both counts and convicted.  The trial Magistrate sentenced the Appellant on 1st April, 2011 to death on count 1 and left the sentence on count 2 in obeyance.  The Appellant being dissatisfied with the conviction and sentence filed this appeal on 7. 4.2011 setting out seven grounds which  are summarized  into three for purposes of the judgment as follows;-

That  the learned  trial Magistrate  misdirected  himself in law and fact by basing the conviction on insufficient  evidence.

The learned  trial Magistrate  misdirected himself in law and fact  by relying on identification parade  result which had not been conducted in compliance of the rules.

That  the learned trial Magistrate misdirected himself in law  and fact by failing to make a finding on the fact that the Appellant’s rights had been violated by being  incarcerated in the police cells for 20 days  from 7. 10. 2009 to 29. 10. 2009.

During  the hearing,  the  Appellant  indicated  that he was relying on the grounds on his petition  while Mr. Obiri, the learned counsel  appeared for the state and made his submissions in opposition to the appeal as summarized  below;-

That the  complainant, PW 1,  was guarding  the premises he was employed  to guard  on 30. 9.2009 when  at about  3. 00 am he was attacked by a gang of four men armed with pangas. They tied him and PW 5 who was guarding a neighbouring shop to their bicycles using ropes.

That three of the four robbers broke into Western Cycle Mart shop as the fourth one guarded PW 1  and PW 5.

That  the moonlight and  security lights enabled  PW 1 and PW 5  to see the fourth attacker who was guarding  them and later picked him out in an identification parade arranged by PW 7.

That PW 1 was injured  during the robbery as confirmed by PW3.

That after the robbers had left,  PW1 untied himself and reported the incident to the police who visited the scene. Thereafter  the  Appellant was arrested,  positively  identified,  charged, prosecuted and  convicted.

That the delay in arraigning Appellant to court should not affect the conviction and  referred the court to the Court of Appeal decision in Julius  Kamau Mbugua –vs- RepublicC.A. Cr. AppealNo. 50 of 2008, where  the court stated it was not the duty of the Appellate court to go beyond the scope  of Criminal  trial to adjudicate on the violations of the right to personal liberty which happened before the Criminal court assumed  jurisdiction over the accused.

The Appellant  submitted  in reply to the state’s submissions as follows;-

That it  was not  clear whether PW 3 treated PW 1, or only filled his P3 form.

That the  proceedings at page 35  shows some of the people  in the identification  parade had been with him in the cells. That he had asked  for the cells  register to be availed during the hearing but it was not.

That the mobile found with him was his and pointed  out that it was  not among the items  said to have been  robbed from the complainant.

This  being the first appeal, this court has to re-evaluate the evidence , assess it afresh and make its own conclusions, while remembering it neither saw nor heard the witnesses. The case of Okeno –vs- Republic (1972) E.A page 32 is relevant.

The main prosecution witnesses, Patrick Taabu Simolo and William  Emusugutu Chogeya  testified  as PW 1 and PW 5 respectively. Patrick (PW 1)  was guarding a Wines and Spirit  shop, while William (PW 5)  was guarding Western Cycle Mart shop on 30. 9.2009. The two businesses are next  to each other. About  2. 00 am William went to where Patrick  was and at about 3. 00 am they were attacked by four men armed with pangas. The  security lights were on and they were able to see the four men.  They were ordered to lie down and tied with ropes. Two of the men were left guarding them as the two others broke into Western Cycle Mart shop.  Patrick  was hit on the right shoulder and right knee with a club and cut on the face by one of the two men guarding them. The two watchmen saw the robbers take away four motor cycles.  Patrick managed to untie himself, after which he  went to police station and reported.  Police started investigations and arrested both Patrick  and William.  PW 2, the  proprietor of Western Cycle Mart and his employee, PW 3,  gave particulars of the items they found missing from the shop.  Dr.  Zachariah Njau who is also indicated to have testified  as PW 3,   but should have been PW 4, as  he was the fourth witness,  produced the P3 form and treatment notes on PW 1 indicating PW 1 had suffered harm.  The investigating officer,  Cpl. John Onyango, testified  as PW 6. He told  the court how he visited the scene of the robbery  and found PW 2,   who confirmed the items  that had been stolen.  He  also interrogated William who was  the watchman of PW 2’s business  and he told  him he saw the four  robbers and could  identify them.  He issued Patrick with a P3 form which was filled after treatment . Later he detained the  Appellant and found him with a new Nokia 2720 which he  suspected to have been stolen and arrested him.  An identification parade was arranged  by PW 7 during which both Patrick and William  identified  the Appellant  as one of the robbers.  He then charged the  Appellant.  PW 7  told how he conducted the identification  parade on 30. 10. 2009  where the suspect , who is the Appellant was in  the cells.  He  got ten members of the parade from the cells and others  from outside the cells.  He called  Patrick and William at different times and each picked  the Appellant  from the parade.  He said the Appellant indicated he was not satisfied as the witnesses and himself had been  in the same cell.

The evidence availed before the trial court shows that Patrick and William were guarding their respective employer’s businesses which are next to each other,  on 30. 9.2009, when at about 3 am they were attacked by four men armed with pangas.  In the course of the attack PW 1 sustained injuries which were classified by Dr. Zachary  Njau (PW 4 ) as harm. The four men broke  into PW 2 business premises namely,  Western Cycle Mart,  which was being guarded by William and stole from therein  the items listed in the particulars of count 1. The attackers were more than one and were armed with pangas which are dangerous weapons. They also injured Patrick who was guarding  a neighbour’s business. The  evidence adduced therefore  established that an offence of robbery with violence was committed by four armed  men who attacked Patrick and William on 30. 9.2009 at about 3. 00 am and stole  the listed items from the shop of PW 2.  Patrick was injured  in the process of the said robbery. The learned  trial Magistrate,  after considering  the evidence presented before him came to a similar conclusion when he found at page 46  line 21;

‘’ In this  case there is no dispute that the complainant, Robert  Juma  Wapogana (PW 2)  lost property  and for the property to be stolen, the  night watchman was attacked and injured and threatened with fatal  injuries.’’

The learned  trial Magistrate  correctly identified  the main issue that  the court needed to settle in the case, especially in relation to count 1, when he stated at page 46  line 23;

‘’  ……..what  this court should consider  is whether accused has been properly identified  and was linked with therobbery.’’

The  other issue that the trial  court needed to settle relates to count 2 and is whether circumstances existed to  make the court conclude  that the Nokia  2720  found on Appellant at the time of arrest had been stolen or unlawfully obtained. Starting with this last issue , the only evidence availed was that of PW 6 who was both  the arresting and investigating officer in respect  of count 2. The evidence is that he suspected the phone he found on Appellant was stolen as he did not have anything to show that the phone was his. The Appellant  in his sworn defence said he had been given the phone by his brother.  In his submission before this court he insisted the phone was his.  The learned trial Magistrate in his judgment at page 46 line 20 observed;

‘’ As regards count 11, the accused was found with a Nokia 2720 at the time of arrest, which he was not able to account for. At the    time of the arrest it appears that he didn’t  give an account for it which could have cleared the speculation by investigation.  His explanation before court also is wanting.  He stated that the phone was given to him by hisbrother who he didn’t identify  and whom he said that he  will not call  as a witness.’’

It  is important  to remember that the prosecution had the duty to proof their case against  the Appellant  beyond reasonable doubt. The responsibility never shifted to the Appellant as the learned Magistrate appeared to suggest in the portion of the judgment  reproduced hereinabove. For  the last couple  of years, many Kenyans  from all walks of life move around with mobile phones and very few of them, if any, carry the documents of purchase of the mobiles they carry. PW 6  placed the values of the Nokia 2720  he found with the Appellant at Kshs.6,000/= . There  was no materials placed before the trial court to show why PW 6  suspected or believed the phone was stolen or unlawfully obtained.  If possession of the  Nokia 2720  is the only thing that made PW 6 arrest the Appellant, and there is no other reason given, then Kenyans have a reason to fear as many may find themselves arrested and charged for possessing  mobile phones and other valuables if they do not  carry with them documents of ownership.  As the Nokia  2720 was  not among the items stolen from PW 2 business  premises or from the two watchmen Patrick and William, the  defence offered by Appellant  that the phone was his as it had  been given  to him by his brother whose name he gave as  Stephene  Ouma to use was in our view  sufficient explanation. The prosecution had not availed  evidence to dispute or rebut that explanation offered by the Appellant. We  find that the learned trial Magistrate erred in law by shifting the burden of proof from the prosecution to  the defence in relation to the charge in count 2.  The conviction on count 2 was not based on sound  evidence  and is unsafe.

Going back to issue of identification of the robbers it is important to note that  Patrick and William said they had not recognized  the robbers. They  were not persons known to them before. Their evidence is that they saw them through the security lights and  told PW 6,  the investigating officer that they could identify the robbers if they were to see them again.  Patrick  and William  do not seem to have given PW 6 or  the court any descriptive details of the robbers they saw during the  robbery,  that could have enabled PW 6 to arrest the Appellant as one of the suspects.  Patrick and  William did not also disclose how bright  the  light  from the security lights at the scene  were at the time of the robbery and at what distance the robbers were when they saw them. This omission, coupled with their failure to give descriptive details of the robbers they saw that could  reasonably have assisted the investigators look for the suspects, casts doubts on the results of the  identification parade. This is especially so when it is noted that the  Appellant complained about  the conduct  of the parade saying he had been with Patrick  and William in the cells.  He  had asked the court to avail the cells register immediately after PW 7  testified on 25. 2.2011. The  record shows  the court granted his request and ordered PW 6  to avail the cells register for 31. 10. 2009. There  is however nothing on record to show that the cells register was produced. PW 6  had admitted  that Patrick and William  had been arrested and remanded.  There is no evidence  to rebut the Appellant’s claim that they had been in the same cells with the parade witnesses  before the parade was arranged. We are of the view that  the results of the identification parade were unreliable and deficient and  would be unsafe to be the basis of a conviction in respect of count 1. In the case of Vincent Omondi Obeto & another –vs- Republic (2005) eKLR , the Court of Appeal dealt with a  similar case where they found the identification parade conducted  by the police was deficient in view of the fact that the description of the robbers was not made to the police when the initial reports of the robberies were made.  The court therefore held that the prosecution did not establish beyond reasonable doubt that the witnesses had positively identified the Appellants

We see no other evidence on which the learned trial Magistrate could have based the conviction as shown in the following portion of the judgment;

‘’Although  the accused in the identification parade  he protested that the witnesses were with him in the police cells, there was no evidence produced to that effect. …….I  therefore  find that the ID parade was  properly done.Having  concluded  as such, l find  that the complainant lost property  and  in the cause of the robbery, the nightwatchman was injured and  threatened with fatal injuries.  Ifurther  find that the robbers were armed with dangerous weapons. The accused also has been properly linked to the charge of robbery with violence

The responsibility to rebut Appellant’s  contention lay with the prosecution, who in any case, had the responsibility to proof their case beyond reasonable doubt.

On the contention by Appellant that the prosecution violated his  constitutional rights  by incarcerating him for 20 days  before taking him to court and  that for this reason  the charge should have been   rejected, the Court of Appeal in the case of Julius Kamau Mbugua –vs- Republic  C.A. Cr.  Appeal No. 50 of 2008 held that such a breach gives rise to Civil remedies  unless  it is shown that the incarceration had  a link or effect on the Criminal trial resulting  to a  prejudice to the Appellant.  We find that the  20 days  incarceration  alleged by the Appellant  did not cause any prejudice to the trial process in this case and his remedy if any, lies in a Civil Claim.

Though  not raised by Appellant and the state,  we  notice from  the particulars of the charge  in count l that  the person  robbed is stated to be Patrick  Taabu Simolo, who is said  to have been acting as the watchman for Robert  Juma. When Patrick testified as PW 1 before the Lower court,  he indicated he was a watchman for Biloma Wines and Spirit shop.  Robert Juma  testified  as PW 2 and stated that   his shop, which had been broken  into, deals with motor cycles and  other related  items. The person who was the watchman of PW 2 for that business was William Emusugutu Chogeya who testified as  PW 5 and not PW 1.  The person who was therefore  robbed was William Emusugutu Chogeya as he was the one acting as the watchman  for Robert Juma, the proprietor of Western Cycle mart shop.  In  the process  of the said robbery,  Patrick  Taabu Simoro was wounded.  This confusion may have called for the charge to be challenged for being defective.

Having found as above, we find the conviction of  the Appellant  on both charges was based on evidence that fell short of the legal requirements of proof beyond reasonable doubt. The convictions  are unsafe on both  counts. The appeal is upheld, convictions on both charges and the sentence  set aside. The Appellant  should be released forthwith unless otherwise lawfully held.

DATED,SIGNED AND  DELIVERED  AT BUSIA THIS  13TH DAY OF NOVEMBER, 2013.

F. TUIYOTT                                                                           S. M. KIBUNJA

JUDGE                                                                                   JUDGE.

IN THE PRESENCE OF;

GEORGE OMGUNGA ………………………………………COURT CLERK.

…………………………………………………………………   APPELLANT

…………………………………………………………………    RESPONDENT