Fredrick Ambani Naitiri v Republic [2014] KECA 25 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: ONYANGO OTIENO, KIAGE, & KANTAI, JI.A)

CRIMINAL APPEAL NO. 311 OF 2009

FREDRICK AMBANI NAITIRI ………...….....….APPELLANT

VERSUS

REPUBLIC…………………….……………..RESPONDENT

(Being an appeal from the Judgment of the High Court of Kenya at Kisumu

(Mwera J. & Warsame J.) dated 21st   September 2006

in

(KISUMU HCRA 428 0F 2003)

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BETWEEN

JUDGMENT OF THE COURT

The appellant FREDRICK  AMBANI  NAITIRI  was  on 10th June  2003 arraigned before the Principal  Magistrate  at Kisumu  on a single charge  of robbery  with violence contrary to Section 296(2) of the Penal Code and  of rape contrary  to Section 140 of the Penal  Code  both alleged  to have been committed on 14th May 2003 in Kisumu  District.   He was alleged to have robbed and raped one E A  A (PW1). He was in the company of one other  person  and armed  with pangas   and rungus. They  used  actual  violence  on PWl  in the cause  of stealing her mobile phone, personal documents, watch, brown shoes and handbag.

After the case was tried, the appellant was found guilty of the offence charged, and  convicted.  On the robbery with violence charge he was sentenced to suffer death as by law provided while for the rape charge he was to serve five years imprisonment with hard labour.

Aggrieved, the appellant filed an appeal  in the High  Court  at Kisumu against  both conviction  and  sentence.   That appeal  was heard  by Mwera and  Warsame  JJ,  (as  they  then  were)  who,  by  a  judgment dated   and delivered on  21st September 2006,  dismissed  it.   They  however held  the sentence for  rape in abeyance.  That  dismissal   provoked  the  current appeal.

The  appellant's  point   of  grievance   are  captured  in  a  five  ground Memorandum of appeal filed on 19th  November  2012 by the firm of Bruce Odeny   &  Company Advocates   and  a  supplementary memorandum of appeal  of equal length  filed by the same advocates for the respondent on 18th  January  2014.   When  the  appeal  came  up  for  argument before  us, however, Mr. Odeny,  the appellant's learned  counsel  abandoned all  but the last of the grounds on the memorandum of appeal  together  with  three of  those  in  the  supplementary memorandum of  appeal.   That  left  the following as the appellant's points on which the learned  Judges are alleged to have erred;

1. Upholding the death sentence yet other options were available.

2. Violence was not sufficiently   proved for “lack of collaboration (sic!) and lack of    evidence on alleged weapons”.

3.  Identification.

4.  Lack of corroboration of the complainant's evidence on rape.

Starting with identification, Mr. Odeny  submitted that  as  PW1 was undeniably traumatized by the ordeal,  a fact confirmed  by JAMES TOLO (PW8) the clinical officer who examined her, she could not have been in a position  to positively  identify  her  attackers.    He also criticized  the High Court for accepting her evidence  yet she did not tell the police exactly how many  people  attacked  her.   He faulted  the evidence  of the identification parade  at  which   the  appellant  was   picked   on   the  ground  that   the identification witnesses already  knew the appellant.

This ground was opposed by  the  respondent through Mr. Abele  the learned   Assistant   Director   of  Public   Prosecutions  who   invited   us  to consider  the concurrent findings  by the courts'  below    that  the incident, though occurring  at night  being early  evening,  was such  that it afforded the witness ample opportunity to identify and recognize the appellant.

PWl,  a teacher  at [particular withheld]  Primary  School was on her  way  home after  seeing  a friend  at Kiboswa  when  she  alighted  by a Kiosk near  her home. As she  approached  a home  nearby,  she  was  confronted by  two panga-wielding men.  They demanded money from her before pushing her to a bush  and  relieving  her  of the items listed  in the charge  sheet. They pushed her deeper into  the bush  where  one of them  raped  her.       It is the same one who had  taken  her hand  bag.  She saw  the man  clearly  by the headlights of a vehicle  that  passed  by. As the robber  duo  attempted to drag her to yet another spot, she heard voices and managed to prise herself free  of  the  robbers'  grip  and  ran  towards the  voices  of  a  man  and  a woman. The  man  was  NAFTALI  OCHIENG (PW2) and  as  PW1 was running towards him  crying  for  help,  he switched  on  his spotlight and could  see  clearly  two  men  chasing  after  the  screaming PW1 who  had taught him in primary school. He recognized one of the men as a former neighbour commonly known as Ayub.   This Ayub  is the same  man  who had  raped  PW1  and  he  was  positively  identified and  recognized as  the appellant.

This  is  a second  appeal  and  we  are  by  statute  enjoined  to  address matters  of law only and will not interfere  with concurrent findings  of fact unless  based  on no evidence  (See Section  361 of the Criminal Procedure Code; GACHURU  - VS- REPUBLIC [2005] 1 KLR 688 and  NJOROGE  - VS-  REPUBLIC  [1982] KLR  388).   We note from the record that the evidence  of identification and  recognition as presented by PW1  and  PW2 was not at all challenged by the appellant. In cross examination of PW1 all the appellant elicited was the statement that she did not know him prior to the  incident  suggestive of his  having asked .her  a single  question.  He elected  not to cross-examine the second  appellant whose  evidence,  being of recognition, is stronger than  that of the identification of a stranger and remains therefore uncontroverted.

The identification evidence  was corroborated in material  repects  by the evidence of the appellant's recent possession of PWl's phone.  The learned Judges dealt with this aspect of the case as follows:-

“And even with  all the above, still the appellant remained to be convicted under Section 296 (2) Penal Code on evidence flowing from  L (PW3),     V  A  (PW4), M  O (PW5) and P.C Kiberenge (PW7).   When A  was sent by his mother  M  to   sell this  cell   phone  with a rare  name TRIUMPH, the  prospective  buyer was  L, PW1's cousin. She knew that  it had been stolen some 10 days earlier.  She had used it before and she knew it well. She got P.C Kiberenge to arrest PW4 with it. He in turn led them to his mother (PW5) who revealed that  she snatched it from the appellant in order for him to  pay her debt.  Then she led the  police to arrest the appellant and he was  charged.  We saw this as a dramatic but connected chain of events  a few  days  following  the robbery.   We do not think that  it was in error to arraign the appellant  with  robbing E of this gadget and other things.  It was also positively identified.   The   appellant    could   not   escape charge, trial conviction and sentence. The appeal on the count 1 robbery with violence contrary to Section 296 (2) Penal Code was proved. The appellant with his mate were armed on the day of the robbery."

We are  of the  respectful  view  that  the  learned  Judges  were  entirely correct in their evaluation and appraisal of the evidence in this respect and the conclusion that the appellant was one of the robbers cannot be faulted.

Turning to the appellant's complaint that the rape charge was based on uncorroborated evidence,   it was Mr. Odeny's  submission  that   the spermatozoa found  in PW1 was  not  proven  to have  emanated from  the appellant and that in any event there was no eye-witness to the rape.  With respect to counsel, very rarely does the act of rape occur in the presence of by standers who can be called as independent eye-witnesses. In most cases the only person who can testify to the violation is the victim and her evidence does not, by dint of Section 124 of the Evidence Act, require to be corroborated. In the present case, however, it was actually corroborated by the presence of spermatozoa given the unchallenged evidence of PW1 that the appellant it is that raped her. Further corroboration had been provided, though  none  was  required, by  the  long  catalogue of injuries sustained by PW1 in the traumatic incident  including tenderness on both arms,  bruises and wounds as well as the presence  of thorns in both  her legs consistent  with her evidence  that the robber- rapists had  removed her shoes and then dragged her into a thorny  bush where  the appellant raped her.  The two courts  below were right to find the offence of rape as well as that  of  robbery  with  violence  to  have  been  proved   beyond  reasonable doubt.

From what we have already  set out herein, and in particular the fact of the appellant having been in the company  of another  and  actual violence including the rape itself having been used  against  PW1 contemporaneous with  the robbery, the ingredients of a robbery  with violence charge  under Section 296(2) of the Penal  Code  are satisfied.   The argument that  there was  no  evidence  of  the  alleged  weapons therefore   does  not  avail  the appellant much.

Turning finally  to the question whether  the courts  below  should have considered  any  other   sentence   other   than   the  death   sentence   for  the robbery  with violence charge, we agree with Mr. Abele that in so far as the sentence  of death  is a lawful  one, the appellant's complaint seems  to be one of severity of sentence, which, by express provision of section 361(2) of the Criminal Procedure Code, is a matter  of fact over which we have no jurisdiction.  The appeal on that ground therefore fails.

The upshot of our consideration of this appeal is that it is devoid of any merit.  We accordingly dismiss it in its entirety.

Dated and delivered at Kisumu this 11th day of July 2014

J.W ONYANGO

………………………

JUDGE OF APPEAL

P.O. KIAGE

………………………..

JUDGE OF APPEAL

S. OLE KANTAI

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JUDGE OF APPEAL

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

DEPUTY  REGISTRAR