Bonface Ikuha Adiagala & 2 ohers v Republic [2015] KECA 23 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  MARAGA, AZANGALALA & KANTAI, JJ. A)

CRIMINAL APPEAL NO.71 OF 2013

BETWEEN

BONFACE IKUHA ADIAGALA & 2 OTHERS.........................APPELLANTS

AND

REPUBLIC…………………………………………..RESPONDENT

(Appeal from a Judgment and Orders of the High Court of Kenya at Kakamega (S. J. Chitembwe & B. Thuranira, JJ) dated 7th February, 2013

in

KAKAMEGA No.  31, 32 & 33 OF 2010

**********************************

JUDGEMENT OF THE COURT

The appellant, Bonface  Igoho  Adiagala  was 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 particulars being that on the  night of 25th January, 2009 at Butiti village in the then Vihiga district with  others not before the court while armed  with  dangerous  weapons  namely  pistols,  pangas  and  swords  robbed  Ben Harrison Lusiji of a motor vehicle registration mark KAR 861 N and other items and that immediately before or immediately after the time of that robbery they threatened to use actual violence to the said person.  The appellant was charged in the alternative with  handling stolen  goods contrary to Section 322  (2)  of the Penal Code  particulars being  that  on  31st January,  2009  at  Khayega  market  in the  then  Kakamega  District otherwise in the course of stealing  he dishonestly received a mobile   phone knowing it to be stolen goods.

In  the  second  count  the  appellant  was  charged  with  the  offence  of   being  in possession of a firearm contrary to Section 34 (1) of the Firearms Act particulars being that on 31st January 2009 at Khayega market he was found in possession of an imitation firearm namely a pistol.

A trial took  place before  the  Principal  Magistrate (J.M. Githaiga)  and   in  a judgment delivered on 29th January, 2010 the appellant was convicted and sentenced to death on the robbery   with violence charge, was acquitted on the firearms charge and nothing was said of the alternative charge.

The  appellant  appealed  to  the  High Court  of  Kenya  at  Kakamega  and  in  a  judgement delivered on 7th February, 2013 (Said J. Chitembwe and B. Jaden Thuranira, JJ) the appeal was disallowed.  That provoked this second appeal which by virtue of Section 361 (1) (a) of the Criminal Procedure Code must only be confined to issues of law as has been stated and restated in many decisions of this Court such as Stephen M'Riungu & others v Republic (1982-88) I KAR 360.

In the homemade Memorandum of Appeal filed on 30th October, 2014 and which learned counsel for the appellant Mr. Nyamweya adopted, the appellant raised seven grounds of appeal which can be condensed to an attack on the death sentence said to be inhuman and degrading; and the charge sheet which is said to have been defective on grounds of geographical jurisdiction on where the offence occurred.  The other issue raised is whether the facts of the case showed a case of robbery with violence contrary to Section 296 (2) of the Penal Code or whether the facts showed a simple robbery under Section 295 of the said Code.

We therefore  visit  the  facts  of  the  case  that  were  before  the  two  courts  for purposes of establishing   whether there are issues of law that call for our  consideration in this appeal.

The prosecution case was that at 8:00p.m. on 25th January, 2009 Ben Harrison Lusiji (PW1) (Lusiji), a retired school principal, was taking tea in his sitting room with his  wife  Rachel  Ngaira Lusiji  (PW2)  (Rachel)  and  their  daughter.      They were surprised to see their employee brought into the house by three strangers from outside who threw her to the floor.  Lusiji was also floored to the carpet and neither he nor his wives were able to recognize any of the attackers in the confusion that followed.   He was robbed of two mobile phones, a watch and money as the robbers ransacked the house taking away many items including  a generator, a toaster, a gas cylinder, a television set, a video deck, an iron   box, clothes and seat covers.  The robbers grabbed Lusijis' car keys, loaded the said items into his car and drove away in the car.  Alert was sounded and neighbours arrived but the robbers had then driven away.    The car was recovered the next day as Lusiji was summoned by police and identified some of his stolen items which were then at Kakamega police station.  Rachel was injured in the incident.

In cross examination by the appellant Rachel stated that:

"...I saw a scar on your face.  Your face is peculiar.   I saw you clearly.   I did not indicate I saw a mark on your face when I recorded my statement..."

And of the identification parade:

".... The persons did not look alike.  Some were fat.  People were wearing different clothes."

On 31st January, 2009 No. 216389 Nehemiah Bitok (PW3), a superintendent of police and District Criminal Investigations Officer, Kakamega, received a tip-off from an informer that there were suspects at Khayega market suspected to possess a firearm. He  with  other  police officers  including    No. 55736  Corporal  Benjamin Nyongesa (PW6)  proceeded there and found the  appellant and his co-accused   and arrested them after  the  appellant  had  attempted  to escape  but  was  found  armed  with  an  imitation firearm  which was recovered and produced as part of  the prosecution evidence.

On 2nd February, 2009 No. 231518 Inspector of Police Godfrey Mangesa of Kakamega  Police  Station  conducted  an identification  parade   where  he  placed  eight persons  at  a parade  where the appellant  chose  the  position  between  three  and  four members of the parade.  Rachel identified the appellant   at the parade by touching him. Another parade was conducted on 5th  February, 2009 by No. 50677 Inspector of Police John  Odhiambo and  Susan   Ajirwa,  who  was  not  called  as  a  witness  for  the prosecution, identified  the appellant by touching him.

That was the case made out by the prosecution which the appellant was called upon to answer.

In  an  unsworn  statement  the  appellant  testified  that  he  dealt  in  mangoes, sugarcane and maize which he sold at Khayega market and  that on 31st January, 2009 he was confronted by strangers at the  said market who beat him up, arrested him and took him  to  Kakamega  Police  Station.     He  denied  the  charges  laid  against  him  and complained  about the way the identification  parade was conducted stating that Rachel had not given any description of  the appellant before the parade was conducted.

The learned trial magistrate found   that the case against the appellant   had been made beyond reasonable doubt and convicted him as we have already stated.

Mr. Nyamweya, the learned counsel for the appellant, in submissions before us when the appeal came for hearing on 18th November, 2014, was of the view   that the main charge of robbery with violence had not been proved as required in law as neither Lusiji nor his wife Rachel had identified any of the robbers who entered their home on the fateful night.   Counsel also attacked the way the identification   parade was conducted  arguing  that  steps  had  not  been  taken  by  the  police  to  ensure  that  a disfigurement on the hand of the appellant was  not concealed.    Reliance was laid onAjode  v Republic  [2004]  2 KLR  81where it was held    inter  alia that  the  correct procedure before conducting an identification parade is that the witness should give a description  of the accused  person to the police before taking part in an identification parade.

Finally counsel attacked the death sentence imposed on the appellant arguing that such sentence is inhuman and degrading and inimical to the right to life guaranteed in the Constitution of Kenya, 2010.

Mr. Sirtuy, learned Principal Prosecution Counsel, conceded the appeal arguing that the identification parade was not properly conducted. Counsel also believed that the death sentence is unconstitutional.

We begin with the death sentence imposed on the appellant which both counsel believed to be unconstitutional relying for that submission on Godfrey Ngotho Mutiso v Republic [2010] eKLR.  In that case the appellant was charged with the offence of murder and sentenced to death.   The judgment of this Court was delivered on 30th July,2010  where  it  was  held  that  Section  204 of  the  Penal  Code  which  provides  for  a mandatory death sentence is antithetical to the Constitutional provisions of the then Constitution  of  Kenya  on  protection  against  inhuman  or  degrading  punishment  or treatment and fair trial. The court stated:

"....We  note  that   while  the  Constitution itself recognizes the death  penalty as  being  lawful,   it does  not  say  any where  that when   a  conviction  for   murder  is  recorded,  only   the  death sentence shall be imposed. We declare that  Section  204 shall, to the  extent   that  it  provides that  the  death penalty is the  only sentence in respect  of the  crime  of murder is inconsistent with the letter and  spirit of the  constitution, which  as we have said, makes  no such mandatory provision  ..."

That  was  a  judgement  of  a  bench  of  three  judges  and  was  delivered  before promulgation of the Constitution of Kenya, 2010, which came into force on 27th August, 2010.

The right to life is protected by the said (current) constitution which by Article 26 (3) however declares that:

"A person shall not be deprived of life intentionally, except to the extent authorized by this   Constitution or   other written law."(emphasis ours)

The issue of the legality of the   death sentence was subsequently  reviewed by a bench of five judges of this Court in Joseph Mwaura & 2 others v Republic Criminal Appeal  No. 5 of 2008 (ur) where the appellants had been convicted on two counts of robbery  with  violence  and  sentenced  to  death.      Their first appeal failed and the appellants filed a second appeal to this court where one of the issues taken regarded the constitutionality of the sentence of death prescribed by Section 296 (2) of the Penal Code.  The Court held that whether or not the sentence imposed by a trial court was severe  or unwarranted  was a matter of fact which the court could  not consider  on a second appeal  as it was not permitted to do so by Section 361 of the Criminal Procedure Code  which  declared  severity  of sentence  to  be  a matter  of  fact.  The court then examined various situations where the death sentence was allowed   in law and stated that:-

"The  situations  in  which   a  person's   right  to  life  may   be curtailed  are contained  in the following  sections  of the Penal Code:  Section 24 which provides that the punishments which may  be inflicted  by a court  include  the  death sentence,  Section 25 (1) which  provides  that  "Where  any  person is sentenced to death, the form of the sentence shall be to the effect only that he is to suffer death in the manner authorized by law".

As we have stated before, the sentence of death is imposed on those found guilty of the following offences: administering an oath to commit a capital offence, murder, and treason, robbery with violence and attempted robbery with violence.    These offences are provided for in the Penal Code.

Since the  Constitution, both  in the former epoch  and  the current, clearly  envisages  that  the  right to life is not  absolute, the state  can limit it in accordance  with  any written law. The law in this case is the Penal Code.

Indeed  some  of the  international instruments envisage  a situation where  the right  to life may be curtailed in furtherance of a sentence imposed  by  a  court of  law.Article 6 of International Covenant on Civil and Political Rights provides that:

1.      Every human being has the inherent right to life.This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2.     In countries which have  not abolished the death penalty,  sentence   of  death may  be  imposed only  for  the  most serious crimes in accordance with  the law in force  at the time of  the commission of the crime...... This penalty can only be carried out pursuant to a final judgment rendered by a competent court. Kenya has been party to this Covenant since May 1972.

This  country, however,  is not  a  party to  the  Second  Optional Protocol to  the  International Covenant on  Civil  and  Political Rights which aims at the abolition of the death penalty.  This is instructive because it points out that under our law as it stands; the death sentence continues to be a valid sentence that can be passed by a court of law."

Both counsel are therefore wrong   to submit that the death sentence is illegal in Kenya.   At any rate Geoffrey Ngotho Mutiso (supra) did not outlaw the death sentence at all. All it  did was  to  decide  that  the  provision  of  the  Penal  Code  that prescribed the death sentence as the only sentence a court could impose for murder was unconstitutional.The death sentence remains a proper sentence to be imposed by our courts for the offences described in the Penal Code.  We therefore dismiss the ground of appeal challenging the legality of the death sentence.

The  gravamen  of this  appeal  in our  considered  view  revolves  around  whether there was identification of the appellant to the required  standard to entitle the two courts  below to hold him liable  and convict him on the charge of robbery with violence.

The learned trial magistrate in the judgment we have adverted to was impressed by  Rachels'  evidence    because,  according  to  the  magistrate,  Rachel  spoke  with  the appellant   during the robbery and was  able to identify him at the  identification  parade held at Kakamega Police Station.   On the first appeal the learned Judges of the High Court, held that:

"..During cross-examination PW2 testified that she informed the police that she could identify one of the robbers. A parade was conducted by PW4, IP Godfrey Mangesa and PW2 identified the 1st appellant.The appellant contends that the parade was not properly conducted since he was the only one with a scar.   We do find that that was not a reason to nullify the parade. It would have been difficult for the parade officer to go round and look for people with scars as the one on the 1st appellant's body..."

First, we do not find the basis for these findings by either court.  Rachel testified that she did not see the robbers properly and that one of the robbers took her spectacles which to us would mean that she could not see properly after her spectacles had been taken off her face.

On the issue of identification parades, Rule 6 (iv) (d) of Force Standing Orders made under the Police Act provides that:

"the accused/suspected persons will be among at least eight persons as far as possible of  similar age, height,   general appearance and class of life as himself.Should   the accused/suspected person be suffering from   a disfigurement, steps should be taken to ensure that it is not especially apparent."

It was therefore misdirection for the High Court, on the first appeal, to hold that it would have been difficult for the police to find other people with scars to participate in the identification parade.  The police should have taken steps to ensure that the disfigurement on the appellants' arm was not especially apparent.  In any event Rachel had not given a description of the appellant and as was stated in Ajodev Republic (supra)  the identification  parade was not properly conducted because the witness was not asked to give a description  of the appellant  to the police before the parade was mounted.

For those reasons this appeal succeeds.   We quash the conviction of the appellant and set aside the sentence and order that the appellant be released from prison forthwith unless otherwise lawfully held.

Dated and Delivered at Kisumu this 5th day of February, 2015.

D.MARAGA

JUDGE OF APPEAL

F. AZANGALALA

JUDGE OF APPEAL

S. ole KANTAI

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

DEPUTY REGISTRAR