George Wabwire Arende v Republic of Kenya [2013] KEHC 1234 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

CRIMINAL APPEAL  NO. 60 OF 2011.

GEORGE  WABWIRE ARENDE …………......…………. APPELLANT

VERSUS

REPUBLIC OF KENYA……………….……………….  RESPONDENT.

(BEING  AN APPEAL ON CONVICTION AND SENTENCE FROM ORIGINAL CRIMINAL CASE NO. 1614 OF 2010 IN BUSIA  SPM’S COURTS – (HON. W.N. NYARIMA, SPM).

J U D G M E N T.

The Appellant, George  Wabwire Arende, was  arraigned with a Charge of robbery with violence contrary to section 296 (2) of Penal Code  before the trial court on 1st  December, 2010. The particulars set out in the charge  sheet were that, on  8th October, 2010 at Busia Township jointly with others not before  the court robbed  Kevin Kirathe of Kshs.12,000/= and at or immediately after the time of such robbery threatened to use actual violence  to the said  Kevin Kiraithe.  The Appellant  entered a plea of not guilty. The prosecution lined up four witnesses and  the Appellant made a sworn statement in his defence.  The learned trial Magistrate after considering the evidence presented   found the Appellant guilty as charged  and convicted him. After receiving a report on Appellants antecedents and his  mitigation, the learned trial Magistrate  sentenced him to death.

The Appellant, being  dissatisfied  with both  the conviction and sentence, filed an appeal  on 5th July, 2011 setting out twelve  grounds which are condensed into three  grounds as below;

That  the incident  giving  rise to the charge occurred in Uganda and hence outside  the jurisdiction of this court.

That the complainant is a police officer and did not lodge any complaint with the Policeuntil  after a week and when the  Appellant went to lodge his complaint   he  was arrested and remanded for four days.

That the learned trial Magistrate erred in Law and fact by not considering his  defence and relying on circumstantial evidence  to convict him.

During the hearing, Mr. Jumba and Mr. Obiri  appeared for the Appellant  and the state respectively. The Appellant  filed written submissions. In his oral speech, Mr. Jumba  for the Appellant  condensed the grounds into  four and submitted  as follows;-

That though  the incident  occurred on 8th October, 2010 and the charge sheet  indicates it was  brought to court on 28th July, 2011 there is no explanation  given  as to why Appellant  was not presented to court before 30th November, 2011.

That the incident  between the  Appellant and complainant  was at Sophia estate  in Uganda,  yet the complainant  claimed he made a report at Kericho police station before taking a Kalita bus to his rural home.

That the Lower court did not consider the defence offered by Appellant in the judgment.

That the learned trial Magistrate did not explain how the death sentence  was to be carried out .

Mr. Obiri for the  state opposed  the appeal and submitted as below;-

That the  robbery occurred at St. Kizito  which is near Mombasa  Hotel. That  the scene was within Kenya  and hence  this court has jurisdiction.

That Appellant was recognized by PW 1, PW 2 and PW 3 as  they knew him even before.  The robbery occurred during the day time.

That the learned  trial Magistrate considered the Appellant defence as shown  at page 24  line 9  of the judgment.

That section 296 (2) of Penal Code does not  oblige the court to give details of how the death sentence would be carried out and that  the failure  to give such details does not prejudice the Appellant.

As usual in first appeals,  this court is obligated to re-evaluate and assess afresh the evidence adduced before the trial  court and come to its  conclusion.  While doing so, we  have warned ourselves  to remember that we never  saw or heard the witnesses  give evidence. This has been discussed in several decided cases including the case of Okeno –vs- Republic (1972) E.A 32, Pandya –vs- Republic (1957) E.A 336 and Shantilal M. Ruwalla –vs- Republic (1957) E.A 570

The evidence adduced before the trial  court by the complainant , A.P.C. Kevin Mutulisi Karaithe, who  testified  as PW 1, is that  on 8th October, 2010 he came from Uganda  through Sophia estate. While at Kizito  hotel, which is near the Kenyan  side of ‘’ No Mans Land ‘’ and Mombasa Hotel,  three  men who had been following him ordered him to stop.  It was about 6. 30 pm and he stopped and noted among the three  men was one he knew  physically as he used to give him the newspaper to read while on duty at the border.  The three men started searching his pockets and he resisted and during the struggle PW 2  and PW 3  arrived. They had come from the Kenya side and were heading to the Ugandan border. They said  they knew the three people who were attacking PW 1 as Ombiji, Mike and Onyango and asked  them what they were doing. Mike and Onyango left and Ombiji  took  some 1,000/= notes from PW 1 shirt  pocket.  PW 1  said  the amount taken was Kshs.12,000/=. After taking the notes, Ombiji  followed Mike and Onyango. PW 1, PW 2  and PW 3  went to police  station and  reported the incident and two days later,  PW 2 and PW 3  recorded their statements.  PW 4  who was given the case to investigate,   said he had known  the person  called Ombiji,   for about two years and when he was later arrested in a different matter, he  re arrested him and  charged him  in this case.  PW 2  and PW 3  confirmed the  man they called Ombiji,   and who they found attacking  PW 1 on 8th October, 2010 with Mike  and Onyango is the Appellant herein. They  had known him  even  before.  PW 1  also confirmed that  Appellant was one of the three men who attacked him and whose names he learnt from PW 2 and PW 3 as Ombiji. The evidence  adducedclearly shows the incident occurred  in Kenya,  at St. Kizito Hotel which is near Mombasa  Hotel and the Kenyan side of the ‘’No Mans Land’’.   There may have been a possibility Appellant and PW 1  had met in Uganda  and quarreled over a girl as Appellant  states.  In any case PW 1 had come from Uganda where  he had  done some shopping.The provision of section 6 of the  Penal Code is relevant and states as follows;

‘’ When an act which, if wholly done within the jurisdiction of  the court, would be an offence against this code, is done  partly within and partly beyond the jurisdiction, every  person who within the jurisdiction does or makes any part of such  act may be tried and punished under this code in the same manner as if such act had  been done  wholly within the jurisdiction.’’

However the robbery  did not occur in Uganda but in Kenya and the  Appellant may likely  have followed  PW 1 with his colleagues named Mike  and Onyango. The  Appellant attacked PW 1 and the  attack was witnessed by PW 2 and PW 3. However,  Mike and Onyango had  left the  scene before the Appellant  robbed PW 1  of his money.  There is  therefore  no evidence  to suggest that Mike and Onyango  or any other person participated  in the robbery except the  Appellant herein.

The complainant  did not report to have suffered any injuries.  The Appellant was also not armed with any weapon. The  learnedTrial Magistrate after analyzing the evidence  adduced made the following observations;-

‘’   The evidence of PW 2 and PW 3 does  corroborate what  the    complainant  told the court.  The demeanor of the two witnesses was positive. The incident happened during the day and the witness told the court that they could see and recognize the robbers. Firstly, the  complainant and the accused knew each other and both told the court they had interacted before.  The complainant  and PW 2 and PW 3  all knew the accused.  PW 2 and PW 3 also knew the other suspects. They could not have mistaken  the accused for anybody else.  They described his clothes well. The  accused’s defence is to the  effect that the disagreed with the complainant in Uganda  that day. Even  if that is accepted, it  does not discount  the fact that the was seen   struggling and taking money from the complainant at  6. 30 pm.  I find  no reason why PW 2 and PW 3 who initially  did not know the complainant  but knew the accused  would give  false testimony against the accused person. My finding is that the accused was with two other   people and that they stole from the complainant cash        after exercising  force and violence on him. The accused was positively identified  and recognized  by the complainant, PW 2 and PW 3.  The time was 6 pm – 6. 30 pm when conditions  for positive  identification were  favourable. The  eye witness the accused  and saw him pull   out cash   in Kshs.1,000/= notes  denominations  from the complainants  breast pocket.  It is apparent the accused stole cash money from the complainant and used actual   violence to the complainant in order to obtain and retain  the money and  thwarted the complainant’s resistance by  overcoming him.’’

We agree with the learned trial Magistrate’s finding  that the Appellant,  who was known to PW 1, PW 2 and PW 3 previously, was the one who attacked PW 1 on 8th October, 2010 and robbed him of Kshs.12,000/=. The trialcourt considered the Appellant defence and correctly rejected it as he was placed at the scene by PW 2 and PW 3 who knew him quite well.  The learned trial Magistrate however, erred in finding that the elements of the offence under section  296 (2) of Penal Code had been established beyond reasonable doubt as the  evidence show that   Mike  and Onyango  had not played any role in the robbery.  They were  not at the scene when  the Appellant  removed the  1,000/= notes from PW 1 breast pocket.  The robbery  was therefore committed by  the Appellant only.   He  was not armed and PW 1 did not sustain any injuries.

The  evidence  adduced before the Lower Court  only established the offence of robbery contrary to section 296(1)  of  Penal Code and the court should have convicted the Appellant for the offence proved in accordance with the provisions of section 179 (1) of Criminal Procedure Code, which states as follows;-

‘’When a person is charged with an offence consisting of  several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with  it.’’

We in exercise of powers granted under section 354 of Criminal Procedure Code  therefore set aside the  Appellant’s conviction  for  the offence under section 296 (2)of the  Penal Code and vacate the sentence  given thereof,  and in its  place  substitute a conviction for  the offence  of robbery  contrary to section 296(1) of the Penal Code which  was proved on the evidence on record beyond reasonable doubt.

We have considered the mitigation plea given by the Appellant before the trial court, the antecedent report given by the prosecution that the appellant was a 1st offender and the fact that he has been in prison since 22nd June, 2011 when he was sentenced to death.  We now sentence the Appellant to five (5) years imprisonment for the offence of robbery contrary to section 296 (1) of the Penal Code. The sentence will commence from 22nd June, 2011 which is the date he first sentenced by the trial court.

DATED,  SIGNED, DELIVERED ON 13TH DAY AT BUSIA THIS NOVEMBER, 2013.

F. TUIYOTT                            S. M. KIBUNJA,

JUDGEJUDGE.

IN THE PRESENCE OF;

GEORGE OMGUNGA ………………………………COURT CLERK.

…………………………………………………………..APPELLANT

……………………………………………………………RESPONDENT.