Boniface Khayumba Katumanga v Republic [2014] KECA 336 (KLR)

IN THE COURT OF APPEAL AT NAIROBI

CORAM: GITHINJI, KARANJA & MURGOR, JJ.A

CRIMINAL APPEAL NO. 80 OF 2014

BETWEEN

BONIFACE KHAYUMBA KATUMANGA..............................................APPELLANTANDREPUBLIC...............................................................................................RESPONDENT

(An Appeal froma Judgment of the High Court of Kenya at Nairobi (Mbogholi & Achode, JJ.) dated 1stJuly,2013

in

H.C. CR. A. NO. 713 OF 2006)

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

JUDGMENT OF THE COURT

Boniface Khayumba  Katumanga(appellant)was charged before the Kikuyu

Senior Resident  Magistrate’s Court with robbery with violence contrary to Section

296(2) of the Penal Code.

The particulars of the charge were that on the 2nd day of November 2005 at Gikuni Village in Kiambu District within Central Province, jointly with another not before court while  armed  with offensive  weapons,  namely  rungus  and pangas  robbed Samuel Bett Rotichof  one mobile phone make Sagem MC 939, one pair of shoes, one pair of trousers, one jacket, ½ Kg of meat, ½ Kg onions, ½ Kg tomatoes, one loaf of bread and cash Kshs 200/= all  valued  at Kshs 10,000/=  and at or immediately before or immediately after the time of such robbery used actual violence  to the said Samuel Bett Rotich.

In the alternative,  he was charged  with handling  stolen  property contrary to

Section 322(2)of the Penal Code.

He pleaded not guilty on both counts but after a trial in which the prosecution called three witnesses  and  the  appellant  tendered  a  sworn   defence,  the  learned  trial magistrate found the charge of robbery proved to the required standard, convicted the appellant and sentenced him to death.

As would be expected in such circumstances, the appellant moved to the High Court on appeal. The High Court (Mbogholi & Achode, JJ) heard the appeal and after subjecting the evidence to a critical evaluation afresh found the appeal devoid of merit and dismissed it.

Undeterred,  the  appellant  moved  to this  Court on second  appeal.  He  has proffered the following grounds:-

(1)       That   the  learned  judges  erredin law when  they  upheld  the decision  by  the  trial   court  failing to find  that  the  purported identification  wasn’t  supported  by  the  provisions  of  Section

137(d)C.P.C.

(2)       That  the learned  judges madean error in both law and facts when they upheld   the conviction   and affirmed  sentence failing to find it  necessary to warn itself  on the inherent  dangers  of convicting on a single witness.

(3)       That  the learned appellate judges of the High  Court  erredin matters  of  law and fact  when they  relied  on  circumstantial evidence of exhibit  failing  to hid the same wasn’t affirmatively proved by inventory or recovery forms.

(4)       That the learned appellate judges erredin law when they upheld the trial  court’s  decision  failing   to find that my fundamental rights were infringed

(5)       That theirlordship erredin law when they rejected my defense illustrating a grudge between me and he complainant on weak reasons.

(6)       ThatIurge the court to avail the court proceedings to enableme raise  more  firm grounds  as  I wish  to  be  present  during   the hearing of this appeal.

This being  a second appeal, by dint of Section 361(1)of the Criminal Procedure

Code, only matters of law fall for our determination.

It is trite however, that conclusions drawn from analysis of facts are themselves points  of law.   That being so, it is   imperative  for us to recapitulate  the evidence adduced before the trial court to enable us make  our  findings as to whether both courts below arrived at the proper conclusions. The evidence before the trial court was to the  effect  that  the  complainant  (Samuel  Rotich)  was walking  home from the nearby shopping centre at about 7:30 pm on the material date. He was accosted by two men one of who he recognised as the appellant, who he said he knew well before then. The appellant is said to have hit him on his back, causing him to fall on the ground. They then stripped him and stole from him all the items listed in the charge sheet.

After they left, Rotich went to the nearby A.P.  Post where  he reported  the

matter to PW1, Cpl. Philemon Ndirangu.    According to Cpl Ndirangu, Rotich reported to him that he knew one of his attackers.  It was the complainant’s evidence that although he knew the appellant well, he did not know where his residence was. Following the robbery incident, he carried out investigations and found out where the appellant  used  to live.    Armed with that  information, he  reported  back to  Cpl Ndiranguwho accompanied him to the appellant’s house. A search conducted therein yielded the Sagem MC 939 cell phone which was identified by Rotichas one of his stolen items and which was the subject of the alternative charge.  The appellant was consequently arrested and taken to the police station where he was charged with the offences in question.

In his  sworn  defence,  the  appellant  denied  robbing the  complainant.     He nonetheless  admitted  having known him well before, but said  that he  owed  the complainant money and that is why he had fabricated the case against him.  After re-scrutinizing  this  evidence,  the High Court was  satisfied  that  the appellant  was properly identified by the complainant.  Further, after warning itself  of the danger inherent in basing a conviction on the evidence of a single identifying witness, the Court found the conviction safe and upheld it.

The High Court found that the appellant was well known to the complainant before;  that the appellant  and his accomplice  had taken time while  undressing  the complainant in the course of the robbery; and further that the complainant had given the appellant’s name to Cpl Ndiranguduring the first report. The court was also

satisfied that the complainant’s stolen cell phone was recovered from the appellant. The High Court found the appellant’s defence an afterthought  made to exculpate him of blame.  The court found the appellant’s defence untenable and dismissed it as such.

We wish to point out at this stage that while going through the judgment of the High Court, we  have noted that  the  learned  Judges at  paragraph  12 of the  said judgment fell into a factual error when they stated that the appellant’s testimony was made ‘without oath’. The record clearly shows that the appellant testified on oath and was even cross-examined after his testimony. We have nonetheless observed from the contents of the rest of the judgment that the said error or misdirection did not in any way impact on the learned  Judges’ reasoning  or on their conclusion  and ultimate findings.  It was nonetheless important for us to set the record straight.

At the hearing of the appeal before us, the appellant was represented by learned counsel Ms Judith Ekiru while the state was represented by Ms Mary Oundo, a Senior Assistant Deputy Public Prosecutor.  Miss Ekiru relied on the homemade grounds of appeal filed by the appellant. Her thrust was basically on the issue of identification. She urged that identification was by a single witness and so the same could not be said to have been free from error; she urged  that there was no proof of violence having been visited on the complainant and so the charge of robbery with violence was not sustainable; and ultimately that the High Court had not re-evaluated the evidence of the trial court properly.

On her part, Ms Oundo opposed the appeal.  She urged that the High Court had properly re-examined  the evidence  adduced by the trial  court.  She submitted  that identification herein was  based  on recognition  and  was  therefore  foolproof. She reiterated that although the appellant had not given his attackers’ names to the police, he had said he knew him well and even led the police to the appellant’s house.  It was her submission that the High Court had re-evaluated the evidence properly. She urged us not to interfere  with the concurrent  findings  of the two courts below and thus dismiss this appeal.

As stated earlier on, our mandate in this appeal is confined to matters of law only. Where a right of appeal is confined to questions of law only, an appellate court has loyalty  to accept the findings  of fact of the lower courts and must resist   the temptation to treat findings of fact as holdings of law  or mixed findings  of fact and law (See M’ Riungu v Republic [1983] KLR 455)

This court in the case of Thiaka v Republic [2006] 2 EA 326reiterated this principle and expressed itself in the following terms:-

“… [this court] will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on a misapprehension of the evidence, or the   courts below are shown demonstrably   to have acted   on wrong principles in making the findings.”

Let us now consider the grounds of appeal raised and see if there is cause for us to depart from the findings of the two courts below.

On the issue of identification, we note from the evidence that the complainant

knew the appellant before the date in question.  He may not have known him by name or where  he used to live,  but he knew him well.   He told the police  officer who received the first report that he knew his attackers.  He even went a step further and did his personal investigation to find out where the appellant’s residence was.  When he  identified  the  residence,  he  led the  police there.  They  not only arrested the appellant but they also recovered the complainant’s stolen cell phone.

Indeed, we note that the appellant himself in his defence acknowledged that he and the complainant knew each other before that date. We observe that the two courts below considered all these facts and arrived  at the concurrent finding that indeed the appellant was properly identified by the complainant.

The learned Judges of the High Court did in fact caution themselves  against basing the conviction on the evidence of a single witness but nonetheless made the following finding:-

“We   are  however  persuaded  that  there  wasno error  in the identification of the appellant in the case before us.  Although this was a case of a single identifying  witness, the complainant knew both  his  assailants  prior  to  the  attack  and there  was moonlight  by which,  according  to his  testimony, he could see clearly and identify them.”

We find no reason to interfere with these concurrent findings of the two courts below. On the issue of identification we are satisfied that the appellant was properly identified by the complainant.  We also note that, that evidence was corroborated by the recovery of the complainant’s cell phone from the appellant’s house.

We are also satisfied that the High Court evaluated the evidence adduced before the trial court,  and the same passed the scrutiny test.  That ground therefore fails. As regards the issue as to whether there was violence used on the complainant or not, this Court has in several of its decisions ruled that an offence of robbery is proved  as long as any one of the three ingredients of robbery  set out in Section 296(2)of the Penal Codeis  proved.  (See  Johana Ndungu v Republic, Criminal Appeal No. 116 of

1995)

In this case, the appellant was in the company of another person who escaped; and he was also armed with a panga which is a dangerous weapon.  It matters not that the complainant did not sustain any serious injuries in the course of the robbery. We are satisfied therefore that the evidence on record was capable of sustaining a charge of robbery with violence.

On the issue of the inconsistencies in the dates, we find that the inconsistencies were minor ones which were curable under  Section214and 382of the Criminal Procedure Code.

In all, we are satisfied that the appellant’s conviction was solidly anchored in the law and we have no basis of interfering with it.  We find this appeal devoid of merit and dismiss the same accordingly.

Dated and Delivered at Nairobithis 10thday of October,2014.

E. M. GITHINJI

……….……...………… JUDGE OF APPEAL

W. KARANJA

………..……..……….. JUDGE OF APPEAL

A. K. MURGOR

……………..….……….JUDGE OF APPEAL

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

DEPUTY REGISTRAR