Danson Ngari Nyaga v Republic [2017] KEHC 1604 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 139 OF 2013

DANSON NGARI NYAGA……….APPELLANT

-VERSUS-

REPUBLIC……………….........RESPONDENT

(An appeal from the conviction and sentence of the Chief Magistrate’s Court ((J. Onyiego) at Kerugoya, Criminal

Case No. 771 of 2007 delivered on 22nd February, 2008)

JUDGMENT

1. The appellant Danson Ngari Nyaga was charged with two counts of robbery contrary to Section 296 (2) of the Penal Code before the Senior Resident Magistrate’s Court at Kerugoya.  The appellant Danson Ngari Nyaga pleaded not guilty to the charge.  After a full trial he was found guilty and convicted on the two counts and was sentenced to death.

2. The appellant was aggrieved by the conviction and sentence and filed this appeal raising the following grounds;

i. That the learned trial magistrate erred in law and facts in convicting the appellant while relying on the evidence of identification were not existence.

ii. That the learned trial magistrate erred in law and facts in relying on insufficient and incredible evidence given by prosecution.

iii. That the learned trial magistrate erred in law and facts in failing to appreciate that the prosecution had failed to prove its case to the standard required in law, that is prove beyond reasonable doubts.

iv. That the learned trial magistrate erred in law and facts in failing to give points for determination, the decision there on, and reason for decision made contrary to the clear provision of section 169 of C.P.C.

v. That the learned trial magistrate erred in law and facts by failing to consider my constitutional were violated under Article 49 (1) (F) (i) and Article 50 (2) (c) (g) (h) and (k) of the Kenya Constitution.

vi. That the learned trial magistrate erred in law and facts by failing to take into account the plausible alibi defence by the appellant.

He prays that the conviction and sentence be set aside and he be set at liberty.

3. The facts of the case are that on 2nd June, 2007 the two complainants Belinda Kathuita (P.W.1) and Elija Mugambi (P.W. 2) were on the way home at 6. 00 A.M.  On the way at a place called Makuyu they saw four men who pounced on Elija Mugambi and started beating him.  They robbed him cash Kshs.3000/= and a cap.  Belinda (P.W. 1) intervened and asked the men why they were attacking Mugambi.  They told her they were looking for her and they got hold of her.  They hit her with a metal bar on the left elbow injuring her.  She was also hit on the mouth and her right eye.  The men robbed her cash Ksh.1000/= a mobile phone make tecno and a pair of shoes.  The complainant screamed for help and members of the public went to their rescue.  The men ran away.  The complainants identified two people one of them being Munyambu who is the appellant in this case.  The complainants reported the matter at Kutus Police Patrol Base.  Belinda was issued with a P.3 form and she was treated at Karemi’s clinic.  The complainant Belinda led Police to arrest the appellant.  An identification parade was conducted and the appellant was identified.  He was then charged with these offences.

4. The appellant gave a statutory statement in his defence and stated that he was arrested on that day while selling miraa.  He did not know why he was arrested.  He said that he was innocent.

This being a first appeal, this Court has a duty to analyse the evidence and come up with its own independent finding while bearing in mind that it did not have the benefit of seeing the witnesses and leave room for that.  This as held in the case of Okeno -V- R 1972 E.A. 32.

5. The evidence before the trial magistrate was adduced by Belinda (P.W.1) who was in company of P.W. 2 Elija Mugambi and P.W. 3 Mbugua Allans Mwaniki who went to their rescue.  The evidence by Belinda Kathuita (P.W. 1) was that they were attacked by four men.  It was at 6. 00 a.m. and day light had set in.  She identified two men.  One was the appellant who she knew by name Munyambu.  The men attacked her and robbed her.  Her testimony that she was attacked and sustained injuries was corroborated by the two eye witnesses P.W. 2 and 3 and the medical evidence adduced by P.W. 6 – the clinician.  According to the clinical officer, James Gathuku, he examined Belinda Kathuita (P.W.2) on 2nd July, 2007 after being referred to him by Kutus Patrol base.  She claimed to have been assaulted by two persons known to her.  She was sick-looking and had bruised upper lip, swollen right peri orbital region and dislocated right elbow.  The injuries were about four hours and were caused by a blunt object.  He filled the P.3 form on 10th September, 2007 and produced it as exhibit.  The evidence of P.W. 1 was corroborated by P.W. 2 and P.W. 3.

6. The evidence of P.W. 1 was not shaken during cross-examination.  Though she gave the name of the appellant as Munyambu, the appellant does not deny that he is known by that name.  The offence was committed early in the morning when there was sufficient light to enable P.W. 1 to identify the appellant.  P.W. 1 identified the appellant in court as the person she was referring to as Munyambu.  From the record, it is clear that the name of the appellant, Munyambu was given to the Police and booked in the Occurrence Book when the report was made.  P.W.1 identified the appellant from an identification parade which was conducted by P.W. 5 Inspector Erick Ngetich.  The evidence by P.W. 1 is convincing and reliable.  It shows beyond any reasonable doubts that the appellant was identified by P.W. 1 as the person who robbed her and injured her in the process.  Her testimony was corroborated by two eye witnesses, that is P.W. 2 and P.W.3.

7. The testimony by P.W.2 Elija Mugambi was that he was in company of P.W.1 as they headed home when four men attacked them.  He was hit on the left leg.  The men robbed him ksh.3,000/= and a cap.  His companion Belinda intervened but the men turned on her and beat her and robbed her.  P.W. 2 testified that Belinda was robbed of her phone, money and shoes.  They screamed and Mbugua (P.W. 3) went to assist them.  P.W. 2 testified that he identified two people one being the appellant whom he knew before as he used to sell miraa in Kutus town.  P.W. 2 testified that he knew the appellant as Munyambu.  He identified him in Court as the person he was referring to as Munyambu.  Later he identified the appellant from an identification parade.  The P.W. 2 testified that it was at 6. 00 a.m. and there was light.  The evidence of P.W. 2 was not shaken in cross-examination.  It was corroborated by the testimony of P.W. 3 Mbugua Allans Mwaniki.  The testimony of P.W. 3 is cogent and reliable.  He was robbed Ksh.3,000/= and a cap.  He was struck on the leg with a metal bar.  The ingredients of robbery were proved.

8. P.W. 3 Mbugua Allans Mwaniki testified that on 2nd June, 2007 at 6. 00 a.m. he was on the way to Kutus when he saw P.W. 1 and 2 being attacked by four men who were armed with sticks and metal bars.  The men attacked the lady.  He started screaming.  He was able to identify Munyambu as one of the attackers.  P.W. 3 took the lady to Karemi’s clinic.  They then reported the matter at Kutus Patrol Base.  The P.W. 3 later identified Munyambu from an identification parade.  P.W. 3 identified Munyamabu as the appellant in this case.  The testimony of P.W. 3 corroborates the testimony of P.W. 1 and 2 in all material particulars.

9. P.W. 5 Inspector Erick Ngetich testified that he conducted an identification parade where the appellant was one of the suspects.  The appellant agreed to participate in the parade.  He called a friend one Gitonga.  The appellant was identified by P.W. 1, 2 and 3.  He produced the parade forms as exhibit 1 and 2.

10. P.W. 4 Cpl Pius Jona testified that on 2nd June, 2007 he received the report from the complainant Belinda who was accompanied by P.W. 2 and P.W. 3.  He then arrested the appellant and charged him with this offence.

11. From the foregoing I am of the view that the evidence adduced against the appellant was well corroborated and overwhelming.  It was sufficient to sustain a conviction.  The appellant was charged with robbery with violence contrary to Section 296 (2) of the Penal Codewhich provides:

“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person, or if at or immediately before or immediately after the time of the robbery, he wounds, beats strikes or uses any other form of personal violence to any person, he shall be sentenced to death.”

The evidence adduced proves that the appellant was in company of three other men, they were armed with dangerous and offensive weapons namely sticks and iron bar, they robbed the victims cash money, shoes, mobile phone and cap and at or immediately before or immediately after the robbery struck (P.W.2) and wounded (P.W.1).  All the ingredients of robbery with violence were proved beyond any reasonable doubts.  The appellant was recognized by the witnesses who knew him before.

12. The defence of the appellant was a general denial.  Though he said he was not at the scene, this defence was dislodged by P.W. 1, 2 and 3 who gave well corroborated testimony that he was one of the assailants.  They gave his name to the Police soon after the robbery and his name was booked in the Occurrence Book.  This shows that the witnesses had recognized him.

13. The appellant faults the trial court for relying on evidence of identification which was not in existence.  I am of the view that the circumstances favoured a positive identification.  It was in daylight.  Looking at testimony of P.W. 3 he could see the victims and the attackers from a distance.  This indicates that there was light.  The witness knew the appellant before and in such circumstances it was easy for the witnesses to recognize him.

14. The authority cited Cleophas Otieno -V- R 20/1989 is not relevant.  The witnesses never indicated that there was anything that impeded a positive identification and recognition.  The appellant submits that conditions favoured positive identification and recognition is more reliable than identification.  With circumstances favouring positive identification and the fact that the witnesses knew the appellant, we have identification by recognition which cannot be faulted.  The witnesses gave the Police his name as Munyambu and that he sells miraa.  The appellant does not deny this.

15. The State in reply submits that there was positive identification which I find was the case.  I am of the view that identification and recognition was proved to the required standard.  All the prosecution witnesses were found to be credible and reliable.  The Court of Appeal in the case of Peter Kirera -V- R 2014 KLR held:

“Recognition is more reliable than identification of a stranger.  As this court stated in the case of Anjononi -V- R (1976-1980) at 1566-1568 this is because:

“recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

Although the conviction was based on the evidence of a single witness, we are satisfied that both the trial court and the High Court properly directed themselves on the question of identification of the appellant.  Both courts made concurrent findings of fact that the appellant was known to P.W. 1 for several years before the day of the attack.”

Further the Court of Appeal in Peter Musau -V- R (2008 eKLR while dealing with the issue of recognition stated:

“In the well known case of R -V- Turnbull (1976) 3 ALL E.R. 549 at 552, it was stated; Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”  We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger……….Such knowledge need not be for a long time but must be for such a time that the witness in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident.”

We have three witnesses, that is P.W.1, 2 and 3 who knew the appellant and even knew what he used to do.  They saw him during day light and they all stated there was light.  Most important is that they gave his name to the Police soon after the incident.  I am of the view that the Appellant was recognized by people who knew him before in circumstances that favoured positive recognition/identification.  This ground must therefore fail.

16. The Appellant faults the Court for failing to give points for determination and the decision thereon as required under Section169 of theCriminal Procedure Code.  The Appellant submits that the trial Magistrate did not indicate the sentence the Appellant was convicted on.  That he was sentenced on the two counts without leaving one in abeyance.  Section 169 of the Criminal Procedure Codeprovides:

1. Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the residing officer of the Court in the language of the Court and shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.

2. In case of a conviction, the judgment shall specify the offence of which and the section of the Penal Code or other law under which the accused person is convicted and the punishment to which he is sentenced.

3. In the case of an acquittal the judgment shall state the offence of which the accused person is acquitted and shall direct that he be set at liberty.”

I have had a chance to read the judgment of the trial magistrate.  At page 27 of the record, the trial magistrate listed down the various issues for determination.  He then embarked on analyzing the evidence and giving reasons for convicting the appellant.  He did specify the offence and section of the Penal Code under which he convicted the Appellant.  I am of the view that the Magistrate complied with Section 169  Supra.  The judgment as submitted by the State was well analysed, and articulated having considered facts presented by the prosecution and the defence.  The ground is frivolous and must fail.

17. The Appellant faults the Court for failing to consider that his rights under Article 49(1) (F) (1) and Article 50 (2) (e) (g) (h) (j) (k)of the Constitution of Kenya 2010 were violated.  The issues he raises are that the trial Court failed to inform him of his right to legal representation, failure by the prosecution to supply him with witness statement.  The judgment was delivered on 22nd February, 2008.  This was long before the Constitution of Kenya 2010 was promulgated.  Be thus as it may the remedy for those violations lies elsewhere and not in this appeal.  The violations if proved do not result in the trial being declared a nullity.  The remedy lies in a claim for damages.  The Appellant was accorded a fair hearing.  Section 72 (3) of the retired Constitution provided:

“A person who is arrested or detained…….upon reasonable suspicion of his having committed or being about to commit criminal offence, and who is not released, shall be brought before a court as soon as is reasonable practicable, and where he is not brought before a court within twenty four hours of his arrest from the commencement of his detention or within 14 days of his arrest or detention where he is arrested or detained upon suspicion of his having committed or about to commit an offence punishable with death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provision of this sub-section have been complied with.”

This provision is different from the provisions of Constitution of Kenya 2010and in particular Article 49 (1).

The Court of Appeal in the case of Dominic Mutie Mwalimu -V- Republic (2008) eKLRwhile dealing with the issue under the retired Constitution had this to say:

“The section further provides that where such a person is not taken to court within either the twenty four hours for non-capital offence or fourteen days for capital offence as stipulated by law, then the burden of proving that such a person has been brought to court as soon as is reasonably practicable rests on the person who alleges that the Constitution has been complied with.  Thus where an accused person charged with a non-capital offence brought before the court after twenty-four hours or after fourteen days where he is charged with a capital offence complains that the provisions of the Constitution has not been complied with, the prosecution can still prove that he was brought to court as soon as is reasonably practicable notwithstanding, that he was not brought to court within the time stipulated by the Constitution.  In our view, the mere fact that an accused person is brought to court either after the twenty-four hours or the fourteen days, as the case may be, stipulated in the Constitution does not ipso facto prove a breach of the Constitution. The wording of section 72 (3) above is in our view clear that each case has to be considered on the basis of its peculiar facts and circumstances.  In deciding whether there has been a breach of the above provision the Court must act on evidence.  Additionally, a careful reading of section 84 (1) of the Constitution clearly suggests that there has to be an allegation of beach before the Court can be called upon to make a determination of the issue which allegation has to be raised within the earliest opportunity.

The appellant did not complain in the trial court that he was not brought to court as soon as was reasonably practicable.  Needless to say the prosecution was not called upon to show that the appellant was brought to court as soon as was reasonably practicable.  There is no merit in this ground.”

What appears on the charge sheet is that the Appellant was arrested on 3rd June, 2007 which was a Saturday and 18th June, 2007 was a Monday, the 14th day was on 16th June, 2007 which was a Saturday.  He could have been arraigned in Court on 15th June, 2007.  The delay was one day as the day of arrest is excluded from the computation.  In the case of Dominic Mutie, supra the Court of Appeal held that by dint of Section 57 (a) of the Interpretation and General Provisions Act, the day on which the appellant was arrested has to be excluded from computation of time.  The Appellant did not complain in the trial Court.  If he had, the prosecution would have been given the chance to prove whether the Appellant was brought to Court within the reasonable time practicable.  Such complaint ought to have been within the earliest opportunity.  Based on the holding in the case of Dominic Mutie Mwalimu supra; there is no merit in this ground.  The Appellant has raised it late in the day.  The authorities cited by the Appellant are from the High Court and are therefore persuasive.  The Court of Appeal takes precedence and the decision binds this Court.

18. The Appellant raised the issue of the language used.  The Appellant submits that he took the plea in Kikuyu but when it came to the evidence of P.W. 5 the parade officer he gave evidence in English which he was not familiar with.  From the record, the Court did not indicate the language used and the interpretation.  However, there was a Court clerk by name Gititu.  After the witness testified the Appellant engaged him in cross-examination on his testimony.  The Appellant could not have cross-examined P.W. 5 on his testimony if he had not understood the proceedings.  It is expected that the Appellant either understood English which P.W. 5 used or the Court clerk interpreted the evidence.  It is clearly an afterthought to say he did not understand when he was able to cross-examine the witness.  This issue was dealt with by the Court of Appeal in a binding decision in Munyasia Mutisya -V- Republic (2015) eKLR

“The subsequent hearing date do not have any indication of the language used either by the court or by the witnesses.

That was a mistake. The court should have indicated the language used by the court and the witnesses and translation if any.  I however note that the appellant participated fully in the trial by cross examining witnesses.  He cross examined P.W.1. He cross examined P.W. 2.  He cross examined P.W. 4, 5, 7, 8 and 9.  In my view therefore he understood the proceedings and the language used.  In my view if the appellant had not understood the language used he would not have cross examined the witnesses.  He would also have raised the issue of him not being able to cross examine witnesses.  There is no record that he complained.  He also does not allege on appeal that he raised the issue and the court ignored it.  The appellant also gave a clear sworn defence and he was cross examined and answered the questions.  That in my view in totality shows that the appellant understood the proceedings and the language used in court”.

This ground lacks merits.

19. The Appellant submits that his right was violated as he was not informed of his rights to be represented taking into account that he was charged with a capital offence.  The Constitution which was in force guaranteed the right of an accused person to legal representation by a counsel of his choice under Section 77 (2) (d).  It was different from the Article 50 (g) of the Constitution of Kenya 2010.  Section 77 (2) (d) of the retired Constitution provided:

“Every person who is charged with a criminal offence shall be permitted to defend himself before the Court in person or by legal representative of his own choice.”

There was no requirement for the Court to inform the Appellant of his right to legal representation.  The Appellant never indicated that he required to have legal representation.  Further more the Court of Appeal has held that the provisions of the new Constitution will not apply in retrospect.  In the case of David Njoroge Macharia -V- Republic (2011) eKLR the Court of Appeal held:

“Under the new Constitution, state funded legal representation is a right in certain instances.  Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6).  Therefore provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.

We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense.  We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided.  The reasons are that, firstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission.

As we have indicated before, in so far as the appellant before this Court is concerned, his trial took place under the old Constitution, and he would not have been entitled to free legal representation during the first trial.”

The ground is a sham and must fail.

20. The Appellant faults the Court for not giving him statements of witnesses.  He submits that he requested to be supplied with statements but he was never supplied with it and so he was not afforded a fair hearing.  That he was in custody and had no access to money in order to be supplied with the said statements.  From the record, the Court did order that he be supplied with statements.  The trial commenced and proceeded to logical conclusion.  The Appellant never revisited the issue.  Had he not been supplied with the statements, the Appellant was at liberty to raise the issue with the trial magistrate just like he had applied for the statements.  He may have been supplied with statements all together or he lost interest and did not require them.  Having failed to raise the matter with the trial court, it is too late to raise it at this stage.  The ground lacks merit.  In the case of R -V- Ernest Ojiambo Mulefu alias Museveni & Another (2015) eKLR the Court held:

“……15th May 2014, Mr. Wanyama acting for the Accused persons applied that the Defence be furnished with certified copies of certain OB entries.  If indeed the court order had not been complied with, than one would have expected the Defence to raise it on that day……..If there was substance in this allegation then one would have expected the new Advocate to take up the issue with Court at the earliest opportunity.   It is therefore surprising that Mr. Makokha who took over from Mr. Wanyama and conducted the Defence in respect to five witnesses did not find it necessary to raise any complaint about non-compliance of the court order before the close of the Prosecution case.  I do not find any merit in this complaint.”

I am in agreement that where the Appellant failed to raise the issue and the prosecution case proceeded with his full participation, the ground is not sufficient to nullify the proceedings.

21. The Appellant raised the issue of burden of proof.  Earlier in this judgment in my analysis of the evidence, I did give reasons for arriving at a finding that the prosecution proved the case against the Appellant.  The prosecution had the burden of proof.  The findings above are reinforced by the Court of Appeal in a binding decision in Daniel Njoroge Mbugua -V- Republic (2014) eKLR where it was held:

“The ingredients of the offence of robbery with violence were further elaborated by the Court of Appeal in the case of Oluoch vs Republic (1985) KLR where it was held that robbery with violence is committed in any of the following circumstances:

“(a) The offender is armed with any dangerous and offensive weapon or instrument; or

(b) The offender is in company with one or more person or persons; or

At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person……….”emphasis supplied.”

As earlier stated in this judgment, all the ingredients of robbery with violence contrary to Section 296 (2) of the Penal Code were proved beyond any reasonable doubts.

22. The Appellant faulted the trial magistrate for failing to consider his defence of alibi.  I am of the view that the trial magistrate did consider the defence.  The defence of alibi was only disclosed after the prosecution closed its case.  It is trite law that the defence ought to have been raised at the earliest opportune moment to give the investigative body a chance to investigate the same.  It also gives the Court the opportunity to consider the truth or otherwise of the prosecution evidence.  The Appellant raised the defence of alibi when giving his unsworn defence.  The trial magistrate found no persuading (sic) reasons to believe the Appellant.  This was after he gauged the evidence by prosecution witnesses who he had a chance to see and assess their demeanor unlike this Court and concluded that the case was not a frame up.  The Court must lean on the finding of trial magistrate when it comes to demeanor of witnesses as he had the advantage to see them.  In Okeno -V- R (1972) E.A. 32 it was stated:

“………the Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”

I am of the view that given the evidence which was before the trial magistrate, he was right to reject the defence of alibi tendered by the Appellant.

23. I must point out that the Appellant filed grounds of appeal together with his Memorandum of Appeal.  He then filed amended grounds of appeal on 29th November, 2016.  He also filed supplementary grounds on 16th February, 2017.  These last two were filed without leave of the Court as required under Section 350 (2) (iv) of the Criminal Procedure Code.  I have taken liberty to consider all the grounds raised based on Article 159 of the Constitution which mandates Court to do justice without undue regard to procedural technicalities.  However, the provision also mandates court to do justice to all irrespective of status.  Article 159 (2) (a) (d) provides:

“In exercising judicial authority, the courts and tribunals shall be guided by the following principles –

a. Justice shall be done to all irrespective of status;

b.Justice shall be administered without undue regard to procedural technicalities.”

Failure by the Appellant to seek leave to amend and file supplementary grounds prejudices the state as it denies him an opportunity to respond to all issues raised.  There is need for the Appellant to comply with the provisions of the Criminal Procedure Code.

24. On the supplementary grounds the 1st grounds is a repetition of issues already raised.  The issue of first report, the Occurrence Book was availed in Court and witnesses were cross examined on it.  The Appellant never referred to it in his defence.  The Occurrence Book was produced by P.W. 4 who confirmed that the name of Appellant was given in the Occurrence Book by Belinda (P.W. 1).  Earlier in this judgment I dealt with the issue of the name of accused which was given as Munyambu and I need not repeat it.  The ground No. 2 and 3 has been addressed.  I am of the view that the Charge Sheet is not defective in any way.  The parade forms were produced as exhibit 1 and 2 by P.W. 5.  The Appellant was charged in Court on 18th June, 2007 and from the Court record the Appellant was charged in Court on 19th June, 2007.  It is an afterthought to state that the parade was conducted after he had appeared in Court.  The person named in the particulars of the charge, that is, second count is Elija Mugambi Nyaga.  P.W. 2 is Elija Mugambi Nyaga and he testified that he was robbed Ksh.3000/= and a hat (cap).  These items are listed on the particulars of the charge.  I have addressed grounds 4, 5 and 6 in this judgment and I need not address them again.

25. In conclusion I find that the prosecution adduced sufficient evidence to prove the charges against the accused beyond any reasonable doubts.  The sentence meted out is the sentence provided under Section 296 (2) of the Penal Code.  Failure by the trial magistrate to suspend the sentence on the 2nd count is not prejudicial.  It would have been proper for the trial magistrate to suspend the sentence on the second count.  Section 354 (3) (111) gives this Court power to correct the sentence.  It is provided:

“……………with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;”

Having considered all the evidence, I am of the view that the prosecution proved the charge against the appellant to the required standard.  That is, beyond any reasonable doubts.  The entire evidence on record left no doubt in the mind of the Court that the Appellant is the one who robbed the complainants.  The trial magistrate properly considered the evidence adduced before her and the conviction was proper in the circumstances.  I find no merits in this appeal.

On sentence, the trial magistrate - the Appellant was sentenced to death on the two counts which was the proper sentence.  However, a sentence of death cannot be executed twice.  The trial magistrate ought to have ordered that the sentence on the 2nd Count be kept in abeyance.  Under the above provision, I order that the Appellant is sentenced to death on both counts.  The sentence on the 2nd count be kept in abeyance.

Dated and delivered at Kerugoya this 2nd day of November, 2017.

L. W. GITARI

JUDGE

Judgment delivered in open court, in the presence of Mr. Omayo prosecution counsel for the State, Appellant present, court assistant Naomi Murage this 2nd day of November, 2017.

L. W. GITARI

JUDGE

2. 11. 2017