Duncan Ekai & James Kaka v Republic [2017] KEHC 3565 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

HCCRA NO. 113 OF 2017

(CONSOLIDATED APPEALS FORMERLY NAKURU HCCRA NO. 216 AND 217 OF 2015)

DUNCAN EKAI

JAMES KAKA…………..................................APPELLANTS

VERSUS

REPUBLIC..................................................PROSECUTOR

[Being consolidated Appeals from the original conviction and sentence on 15th October 2015 by the Eldama Ravine Principal Magistrate Court (Hon. M Kasera, PM) in Criminal Case No. 1050 of 2014]

JUDGMENT

Introduction

[1] This is a consolidated appeal incorporating Nakuru High Court Criminal Appeal Nos. 216 and 217 of 2017 filed by appellants in the High Court at Nakuru arising from Eldama Ravine Senior Resident Magistrate’s Court criminal Case No. 1050 of 2014.  The 1st and 2nd Appellants were, as accused 2 and 1 respectively, on convicted and sentenced to suffer death for the offence of Robbery with Violence contrary to section 296(20 of the Penal Code whose particulars were that they “on the 2nd day of November 2014 at Majani Mingi village in Nakuru County, jointly robbed Charles Kibet Kipsui of cash Ksh.2000 and one Techno Mobile phone valued at Ksh.1800/- and before and at the time of stealing used actual violence to Charles Kibet Kipsui.”

Grounds of Appeal

[2] The principal grounds taken by the appellants were that the Trial Court had relied on the evidence of a single identifying witness without necessary corroboration, lack sufficient evidence to prove the charge against the appellants and want of due consideration the appellants’ defences.

[3] The DPP did not oppose the appeal. Counsel for the DPP pointed out that the identification evidence of the complainant as a single identifying witness was not corroborated citing Stephen Thama Wanjohi v. R (2014) eKLR (Kimaru & Nyamweya, JJ.) citing Maitanyi v. R (1986) KLR 198 on the danger of convicting on identification evidence of a single identifying witness.  Counsel also submitted that although there was evidence of confrontation between the complainant and the appellants herein, and that the complainant had been injured during the incident, the stealing of cash and mobile phone as charged was not proved.

[4] Counsel submitted that –

“It is not clear whether the appellants were stealing from the complainant as they were people who knew each other and only PW1 (Complainant) states that money and mobile phone were stolen without stating who between the appellants stole and how the same was stolen.  There was no corroboration.  It was not clear whether the phone was stolen or fell during the confrontation.  It was also not clear whether the phone was stolen at the scene or before.”

Issue for Determination

[5] The only question for determination is whether stealing as one of the ingredients of the offence of robbery was violence were proved beyond reasonable doubt as challenged by the appellants with support by the DPP who does not oppose the appeal.

[6] There was no contestation that failure to give witness statements to accused person violates his constitution right to fair trial.  This Court has established that although it was ordered by the Trial Court on 29th December 2014, witness statements were not supplied to the 1st appellant until after 3rd February 2015 after the complainant had already testified.

Determination

[7] Consistently with the duty of the first appellate court (Okeno v. R 1972 EA 32) to re-evaluate the evidence, this Court has considered the evidence of the three prosecution witnesses and that of the two appellants before the Trial Court.

[8] Stealing is the central ingredient in Robbery as defined in section 295 of the Penal Code, the offence becoming aggravated and, therefore, subject of capital sentence in the circumstances set out in subsection (2) of section 296 of the Penal Code as follows:

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

[9] When the central ingredient is not proven, it does not matter that the person was armed with dangerous or offensive weapon or in the company of another or other persons, or that he wounds, beats or strikes any person.  Such offender may have committed another offence but not robbery in the absence of proof of theft.

[10] The only eyewitness evidence of alleged robbery is by the complainant (PW1) who testified that-

“I am Charles Kibet Kibsui.  I live in Barina.  I am a farmer.  2. 11. 2014 at 9. 40pm I was in Majani Mingi at a centre.  I left for home was riding KMCW 900K.  I was going to Kimundu Barina.  At Majani Mingi I saw 2 people.  There was moonlight.  My motor cycle was also flashing light.  I saw accused 1 and accused 2.  Karinda accused 1 and 2.  I knew accused 1 for a long time.  He grew up in my uncle’s home.  Accused stays at his brother’s home.  I knew him accused 2 for 3 years.  I stopped the motor cycle.  Accused 1 held my neck.  I told him I thought we were just going home.  I took my ignition key kept it in my pocket.  Accused 2 said he had placed the key in his pocket let us take the key.  Accused 1 squeezed my neck so much.  I left the motor cycle and it fell down accused 2 swept me with boots and I fell down.  Accused 1 laid on me.  Accused 2 knocked me on my chest (ribs)  I folded my legs and hit accused 1 with my knee.  Was left with accused 2.  We struggled and he sprained my thumb.  I was injured on my shoulder.  I was left with accused 2.  Accused 1 was thrown down where I kicked him.  I asked accused 1 you drank milk from our cows and you want to kill me.  Accused 1 said he had pardoned me.  He told me to go home.  I took my motor cycle.  I wanted to make a report at AP post.  I reached for my phone to call my brothers.  I missed my phone and d my Ksh. 2,000/- phone was techno valued at Ksh. 2,500/-.  I made a report to the A.Ps. I went home.  I did not go to the hospital.  I took painkillers.  On 5. 11. 2014 I went to Mogotio heal centre.  I was sent to police station.  I was given P 3 form I was treated.”

[11] PW2 the clinical officer testified, as to the result of his examination of the complainant on 5th November 2014 three days after the alleged incident, that ‘he was tender on the left wrist, right thumb and throat’ and had ‘bruises on the left wrist’ which was swollen, and that the age on the injuries was four days.

[12] PW3 the Investigating Officer testified that –

“I charged them of this offence after investigating the case.  Complainant lost Ksh.2000/- and phone techno.  Complainant was from Majani Mingi trading centre.  KMCW 900K Boxer was his motor bike.  He met the accused persons whom he had known.  He stopped to lift them.  They strangled him as he refused to give them ignition keys”for the motor bike.  They beat the complainant as they tried to take his motor bike.  The accused  told me that they fought.”

[13] When put on their defence the appellants gave unsworn statements  with the 1st Appellant (2nd accused) denying any knowledge or involvement in the offence charged while the 2nd Appellant James Kaka (1st accused) admitted there had been a fight with the complainant as follows:

DW1 James Kaka

“[The police officer at Police Camp] asked me what I did on 1. 11. 2014.  I told him we were drank.  I told him we were with the complainant in a bar at 8. 00pm.  I have lived with Kibet for a long time.  I live in their home.  I found him on the ground motor cycle had fallen on him.  Kibet slapped me.  We fought with Kibet at that point.  I did not steal from him anything.”

[14] During his cross-examination of the complainant, the 1st appellant (2nd accused) did, however, put himself at the scene when he brought up the issue of his own injury to which the complainant aunt responded -

“I was injured at the scene.  You said the truth I pulled your private parts because I was saving myself.”

[15] It is quite easy to find that the complainant and the appellants were involved in a scuffle which the 1st accused (2nd appellant) claims to have been a fight following the complainant slapping him and in which the 2nd accused (1st appellant) was injured in his privates.  The 2nd Appellant alleges that they had been drinking at a bar, which is not unusual for persons who are known to each other as the complainant claimed to know the appellants.  This aspect of the case does raise a reasonable doubt as to whether the complainant and the appellants scuffled in the cause of a robbery or drunken disagreement.  Indeed, the evidence of the complainant appears to indicate that the appellants were really after the motor bike as stated by the Investigating Officer PW3, and it not clear whether they wanted to steal it.  It could well have been an attempt to ride it only.  It was for the prosecution to prove the charge of robbery with violence or place before the court cogent evidence from which the Court could pursuant to section 179 or 180 of the Criminal Procedure Code find proof of a lesser charge or an attempt, respectively.

[16] There was no evidence, however, as to where the money and mobile phone was and how the one or other appellant took it.  The mere discovery of missing phone or money without its being shown that it was on the complainant before or during the fight or alleged attack and that it was taken by the appellants.  In view of the serious consequences of a sentence of death on a finding of guilt for the offence of robbery with violence, a Trial Court should warn itself of the danger of relying on uncorroborated evidence of a single witness for the same rationale in identification cases that the conviction should be safe and free from possibility of error.

[17] In the respectful view of this Court, the ingredient of stealing was not proved.  Nor is there cogent evidence upon which a finding of a lesser charge of assault, affray and such other offence or of an attempted robbery contrary to section 297 of the Penal Code be founded.

The Trial Court’s findings

[18] In finding the charge against the appellants proved, the learned trial magistrate held as follows:

“PW1 explained to the court that when he stopped to give lift to accused 1 and accused 2 accused 1 held him by the neck.  He had known both of them as they lived in the same village.  According to complainant accused 1 grew up in his uncle’s home.  There was moonlight and the motor bike light also helped him to see accused 1 and accused 2 when he had known him earlier.

The accused person and complainant talked during the scuffle.  He even asked accused 1 why he wanted to kill him yet he drank milk from their cows.  It is this question that prompted accused 1 to tell him to go home.

Although accused 1 said he fought complainant because complainant slapped him accused 2 who said complainant injured him on his private parts did not explain how he ended up in the fight. It is complainant who explained that they fought him because they wanted to take his motor cycle.

Accused 2 is a motor cycle rider and he uses the same to fetch water for people.  The two accused who were with complainant in the bar went ahead of him to wait for him so that they take his motor cycle.  It is the spirited fight by complainant that led them away. Complainant was injured in the process and a treatment note and P3 form were produced in court as exhibits by PW2.

PW2 denied knowledge of the offence.  I find the 2 accused robbed a phone and cash from complainant and injured him in the process….”

[19] For the reasons that I have set out above, I respectfully disagree with the learned Trial Court’s finding of guilt and agree with Counsel for the DPP that the Trial Court did not have a basis for establishing that there was theft of money and mobile phone of the complainant, and his finding thereon is clearly not based on evidence.  He merely states that “I find that 2 accused robbed a phone and cash from complainant and injured him in the process.”

[20] Without proof of the theft, the presence of the other ingredients of dangerous weapon, assault by more than one, wounding, beating or striking any person would only amount to affray, assault simple or aggravated or grievous harm. Moreover, it is never the duty of an accused to prove his guilt as the trial magistrate imposed on the 2nd accused (the 1st appellant herein) saying that “Accused 2 who said complainant injured him on his private parts did not explain how he ended up in that fight.”

Conclusion

[21] While there was evidence of in the words of counsel for the DPP a confrontation between the complainant PW1 and the appellants and the former was injured in the fight as shown by the evidence of the clinical officer (PW2), there was no evidence of stealing which is an essential ingredient of robbery and the offence of robbery with violence was consequently not proved.  While the offence could be proved by the evidence of a single witness, the serious sentence of death for which the offence of robbery attract ought to have put the Trial Court into further inquiry to seek corroboration by independent evidence of the appellants commissions of the offence of robbery with violence.

[22] Failure on the part of the prosecution at the trial top furnish witness statements to the 1st appellant until after the complainant had already testified violated the said appellant’s right to fair trial under Article 50 (2)  of the Constitution.

[23] While case-law cited by the DPP relate to a situation where the single identifying witness, that was not the case in this appeal as the complainant had long known the appellants and there was no denial that they were present at the confrontation or fight with the complainant.  In the respectful view of this Court, the learned trial magistrate did not warn himself of the danger of convicting on the evidence of a single witness to the serious charge of robbery with violence.  The appeals, therefore, have merit and the same are allowed, the conviction quashed and sentence set aside.

Order

[24] For the reasons set out above, I quash the conviction of the appellants for the offence of robbery with violence contrary to section 296 (2) of the Penal Code and set aside the sentence of death imposed on them therefor, and consequently direct that each of the appellants be released from custody unless they are otherwise lawfully held.

DATED AND DELIVERED THIS 14TH DAY OF SEPTEMBER 2017.

EDWARD M. MURIITHI

JUDGE

Appearances:

Appellants in person

Ms. Macharia Assistant Director of Public Prosecutions for DPP.