Gitonga v Republic [2022] KEHC 14684 (KLR)

Gitonga v Republic (Criminal Appeal E077 of 2022) [2022] KEHC 14684 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14684 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E077 of 2022

TW Cherere, J

November 3, 2022

Between

Gerald Gitonga

Appellant

and

Republic

Respondent

(Being an appeal from the judgment, conviction and sentence in Tigania Criminal Case No. E072 of 2020 by of Hon. F.K.Munyi (PM) on 19th May, 2022)

Judgment

The charge 1. Gerald Gitonga (Appellant) was charged with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code. He was convicted and was on 19th May, 2022 sentenced to suffer death.

The prosecution’s case 2. Mary Tirindi stated that on 27th August, 2022 at about 08. 00pm, she was headed home with her husband and when they reached their gate where there was electric lighting, a man she used to see push a handcart past her shop attacked them, injured her hand and robbed her of her handbag containing KES. 1,000/-, a techno cellphone valued at KES. 9,000/- an ATM card and ID card. James Gikundi, complainant’s husband stated there was electric lighting at their gate where the incident happened but that he was about 5 metres away when complainant was attacked and did therefore not identify the assailant. Edward Mwenda rushed to complainant’s gate after he heard screams to find that complainant had been injured and robbed. Appellant was arrested by IP Ngone on 21st September,2020 and on 30th September, 2020 complainant identified Appellant as the one that injured and robbed her, in an identification parade conducted by IP Achieng. A P3 form filled by Martha Murunga a clinical officer revealed that complainant suffered deep cut on left hand causing hand drop, the 5th left finger was cut off and the remaining four suffered impairment. Complainant was treated as an inpatient for 8 days.

Defence case 3. In his unsworn defence, Appellant admitted the charge.

4. The trial court after considering the evidence found the prosecution case on the count proved, convicted and sentenced the Appellant to suffer death.

The Appeal 5. The conviction and sentence provoked this appeal. In his petition of appeal and written submissions, Appellant argues that the evidence of identification was not analyzed, prosecution case was contradictory and was not proved beyond reasonable doubt.

Analysis and Determination 6. As the first appellate court in the instant appeal, I am required and indeed duty bound to subject the evidence tendered in the lower court to thorough re-evaluation and analysis so as to reach my own conclusion as to the guilt or otherwise of the appellant. In doing so I must give allowance to the fact that I neither saw nor heard the witnesses as they testified and therefore cannot comment on their demeanour. (See Okeno v Republic(1972) E.A. 32).

7. I have considered the appeal in the light of the evidence on record, amended grounds of appeal and submissions for the Appellant and the State and I have deduced the issues for determination as follows:1. Whether the offence of robbery with violence was proved2. Whether Appellant’s culpability was proved

(1) Whether the offence of robbery with violence was proved 8. The ingredients of the offence of robbery with violence were clearly set out by the Court of Appeal in the case ofOluoch v Republic [1985] KLR where it was held:“Robbery with violence is committed in any of the following circumstances:a.The offender is armed with any dangerous and offensive weapon or instrument; orb.The offender is in company with one or more person or persons; orc.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 ………”

9. The evidence by complainant discloses that the robbery was committed by one person. Medical evidence reveals that complainant was attacked with a sharp object that inflicted a deep cut on left hand causing hand drop, cut off her 5th left finger as a result of which the remaining four suffered impairment. Consequently, I find that the learned trial magistrate correctly found that the prosecution proved beyond any reasonable doubt that an offence of robbery with violence had been committed against the complainant.

(2) Whether Appellant’s culpability was proved 10. It is trite that evidence of visual identification should always be approached with great care and caution (see Waithaka Chege v R {1979} KLR 271). Greater care should be exercised where the conditions for favourable identification are poor. (Gikonyo Karume & Another v R {1900} KLR 23). Before a court can return a conviction based on identification of any accused person at night and in difficult circumstances, such evidence must be water tight. (See Abdalla bin Wendo & Another v R, {195} 20 EACA 166; Wamunga v R, {1989} KLR 42; and Maitanyi v R, 1986 KLR 198).

11. The Court of Appeal in the case of Joseph Muchangi Nyaga & another v Republic [2013] eKLR stated that before acting on evidence of visual recognition, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently.

12. The difference in approach between identification and recognition was expressed thus by Madan J.A in Anjononi and Others vs The Republic [1980] KLR;“…………………This, however, was a case of recognition, not identification, of the assailants; 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.”

13. That is not to suggest of course, that cases of misrecognition cannot occur (See Karanja & Anor vs. Republic [2004] KLR 140) and courts are still duty-bound to examine such evidence with great care.

14. Complainant stated that the offence was committed at 08. 00 pm and that there was electric lighting at her gate where the offence was committed. Her evidence concerning lighting at the scene was corroborated by her husband who was in her company. Complainant stated that Appellant’s face was not covered and that she recognized him as one that used to regularly push a handcart past her shop. Appellant did not deny that he was a handcart pusher. He was subsequently identified in an identification parade whose process he did not question. And finally when he was called upon to defend himself, he unequivocally admitted the offence. push a hand cart neither disclosed that there was lighting at the scene of the robbery nor explain how he was able to recognize Appellant in the cover of darkness.

15. From the foregoing, I find that the trial magistrate rightly found that Appellant had been correctly identified as the person that attacked and robbed the complainant.

Sentence 16. Although Appellant did not raise any issue concerning sentence, I have taken the trouble to address it having noted that Appellant was sentenced to suffer mandatory death sentence.

17. In James Kariuki Wagana vs Republic [2018] eKLR, Prof. Ngugi J (as he then was) observed that while the penalty of death is the maximum penalty for both murder and robbery with violence, the court has the discretion to impose any other penalty that it deems fit and just in the circumstances. He further observed that the death sentence should be reserved for the highest and most heinous levels of robbery with violence or murder. He noted that while force had been used in the case before him, it could not be said that the appellant used excessive force, nor did he “unnecessarily injure the Complainant during the robbery” and was not armed during the robbery. He therefore reduced the appellant’s sentence of death to imprisonment for fifteen years, from the date of conviction.

18. In the case before me, Appellant robbed the complainant and in the course of the robbery, Appellant not only used force, but was armed with a dangerous weapon with which he used to cut complainant’s left hand causing her grievous harm. The level of violence unleashed on the complainant is sufficiently serious to warrant a long term imprisonment.

19. In the circumstances, I will substitute the death penalty to a term of imprisonment for 30 years from the date of Appellant’s arrest that is on 21st September, 2020 in compliance with section 333(2) of the CPC.

DELIVERED AT MERU THIS 03 RD DAY OF NOVEMBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAccused - Present in personFor the State - Ms. Mwaniki (PPC)