JAMES MUTURI KURIA, NAFTALI MUMO MWANGI, MAINA GACHAU, DAVID KIRAGU THUO, STEPHEN WACHIRA GITUNDU & JOHN MWANGI KINOGA v REPUBLIC [2006] KEHC 1253 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Criminal Appeal 124, 125, 126, 127, 128, 129 of 2001

JAMES MUTURI KURIA (WAMUTHONI)………....................................................…1ST APPELLANT

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REPUBLIC …………………………………………................................................……..RESPONDENT

CRIMINAL APPEAL NO. 125 OF 2001

NAFTALI MUMO MWANGI ……………………….......................................................2ND APPELLANT

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REPUBLIC …………………………………………................................................…….RESPONDENT

CRIMINAL APPEAL NO. 126 OF 2001

MAINA GACHAU (Alias) PILOT ……………................................................………..3rd APPELLANT

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REPUBLIC ……………………………………..............................................……….… RESPONDENT

CRIMINAL APPEAL NO. 127 OF 2001

DAVID KIRAGU THUO (Alias) RASTA ……...............................................……….4th APPELLANT

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REPUBLIC ………………………………….............................................…………..…RESPONDENT

CRIMINAL APPEAL NO. 128 OF 2001

STEPHEN WACHIRA GITUNDU ………….............................................………….5th APPELLANT

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REPUBLIC …………………………………............................................……………..RESPONDENT

CRIMINAL APPEAL NO. 129 of 2001

JOHN MWANGI KINOGA…………………..............................................………….6th APPELLANT

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REPUBLIC ………………………...............................................…………………….RESPONDENT

( An appeal from the Judgment  of F.F. Wanjiku , Senior Principal Magistrate, dated 5th April, 2001;

In

Criminal case No. 839 of 1999, Senior Principal Magistrate’s Court, Murang’a).

JUDGMENT

The appellants were charged in thirteen counts of robbery contrary to section 296(2) of the Penal Code.  Facts alleged that on 10th April, 1999 at Kayahwe area along  Murang’a Kahuro main road in Murang’a District, the appellants  while armed with dangerous  weapons  namely home made pistols, and pangas, jointly robbed James  Kariuki Mwangi of a motor vehicle Reg. No. KAE  077 Y Toyota Matatu valued at Kshs.700,000/- , car radio and cash Kshs. 6,800/-, all to the total value of  Kshs. 711,800/-. They also robbed Stephen Muchiri  Kshs.5,000/-; Wainaina Mwangi two pairs of shoes, two handbags, seven Kenyatta University borrowing library cards and cash Kshs.300/- all to the total value of kshs.4,500/- ; Paul Murimi Wanjiru of cash Kshs.500/-; Patricia Mugi Kshs.800/-; Catherine Wairimu kshs.1150/-; Patrick irungu Gichuhi Kshs.1850/-; John Mwiako Kshs.4,000/-; Loise Wanjiru Mwangi kshs.4,800/- and a wrist watch all to the total value of Kshs. 4950/- ; Rachael Wambui Mwangi Kshs.250/-; Sophia Muthoni Wachira  a handbag and clothing valued at Kshs.10,000/-; Paul Irungu Kshs.220/-; James Maina Kshs.1800/-; and at or immediately before or immediately after the time of such robbery used personal violence to the said complainants in counts one to thirteen.

The  fifth Appellant alone faced count fourteen possession of ammunition without a firearm certificate  contrary to Section 4(1)  of the Firearms Act while the First appellant was charged alone in an alternative  count of handling stolen  goods contrary to Section 322 (2) of the Penal Code.  The two were each acquitted in the alternative count in which they were so  charged.

Each  one of the six appellants  was convicted and sentenced to a term of imprisonment  on each of counts one to thirteen, the sentences  being ordered to run concurrently.  Each appellant  has appealed against his conviction and sentence and we consolidated the six appeals for hearing.  We, however, warned the appellants of the danger of proceeding with hearting of their appeals because if the appeals are dismissed we would  enhance the sentences to impose the mandatory death sentence which the trial Magistrate avoided  to impose  when he reduced the offence from those under Section 296(2) to Section 296(1) of the Penal Code.  Appellants elected  to proceed  with  hearing of the appeals each appellant  appearing in person as Mr. Orinda, the Provincial State Counsel, appeared for the Republic Respondent.

From the evidence, motor vehicle Reg. No.KAE 077Y Toyota  Hiace was a matatu and had left Nairobi at about 4. 00 p.m. for Mugoiri carrying passengers who included  the  Appellants.  The driver of the vehicle was James Kariuki Mwangi who gave evidence  as P.W.1.  He told the court he had been employed  by the owner of that motor vehicle  as a driver for  nine months  operating between Nairobi  and Mugoiri.  Having left Nairobi  at 4. 00 p.m.  for Mugoiri  on 10th April, 1999, one of the passengers  said was alighting at Kayahwe River  and therefore P.W.1 stopped the vehicle for the passenger  to alight at about 6. 00 p.m.  Instead of seeing that one passenger alight, P.W.1  saw more than one person standing at the rear with      pistol and pangas ordering  other  passengers to give whatever they had and P.W.1 handed over the driving  of the motor vehicle to one of the people standing who started driving towards Muchungucha.  The conductor  jumped out and run away as the vehicle turned  towards Gatundu into a path where it got stuck.  The rest of the passengers  were left there as the Appellants carrying their loot, abandoned  the motor vehicle and walked away. P.W.1 told the court the six men took Kshs.6,800/- from him.  They also took radio cassette. P.W.1 said he saw them  well and identified them.  Other people  went to assist the victims  and they reported the matter to the police at Kahuro.  P.W.1 added that after he recorded his statement he later heard the appellants were arrested.  He claimed to have identified  the appellants  “ in various times” .  He said the first accused,  now the fourth appellant, was the driver.  He said a radio cassette was recovered and he identified it (MFI 1).

After this witness saying he saw the robbers well, he went ahead to say

“ I  had not seen them before. I did not see them well but  they  were with this pistol MFI 11, panga (MFI I11) Another MFI 1. panga MFI  V.”

The last part is not clear but during cross examination by the  Fourth Appellant, the witness  claimed that the Fourth Appellant  had told them – the victims- to look at him- the fourth Appellant.  This witness save a  similar statement  against the third accused, now second Appellant  and that  raises in our mind, a question whether P.W.1  is not a loose  talker.  How could  robbers  be instructing  victims to look at the robbers during the course  of the robbery? We however realize it is possible depending on the mood of an individual robber in a particular  situation.

`     A look at the evidence of P.W.1 during  cross examination  would tend  to confirm  he was a loose talker.  After  telling  the court  that the Fourth  Appellant took over the driving  of the motor vehicle during the robbery,  he (P.W.1) later told the second accused, now the Third Appellant, during cross examination, that he saw the Third  Appellant go to take  over the vehicle. But at that time he, P.W.1, was moving from his side to the left side yet the Third Appellant, according to P.W.1, was originally seated next to P.W.1 from Nairobi.

When cross examined by the Third Accused, now second Appellant,  P.W.1 said he did not realize  the second appellant was on the vehicle until the vehicle  got stuck in mud at Muchungucha and the conductor run away. That is the time P.W.1  was  able to turn to look behind  and therefore  saw the second appellant as he had not been seeing all passengers  from Nairobi.  We would have thought that when P.W.  1  was displaced as a driver, he was free  and in a position to turn and see every corner of  the motor vehicle  as the vehicle was driven by one of the robbers as there is no evidence that robbers  prevented  him from freely looking around.  He said  the incident took about 25 minutes and that the motor vehicle  had 18 passengers.

Although he had said in his evidence in chief that none of the victims shouted and mentioned no incident of beating, during cross examination he claimed people were being beaten.  He said that in his report to the police, he did not give a description of the robbers and  when he went as a witness at  police identification parade, he was made to stand at the report office from where he saw the suspects passing.

P.W.2  was Paul Wainaina Mwangi, a  Kenyatta University student who was traveling  from the University to his home  at Kahuro during the holidays.  He was one of the passengers on the matatu and was on a seat behind the driver.  He said the vehicle  stopped at Kayahwe bridge for one passenger to alight but instead of that passenger alighting  P.W.2  heard a command  in Kikuyu from among  the passengers behind  him ordering  the rest of the passengers  to look down and keep quiet  and as P.W.2 was responding he saw a gun being pointed at the driver who was  being told to surrender  the motor vehicle.  One of the two passengers  in the driver’s cabin took over the driving  and the vehicle made a U turn and was driven towards  Muchungucha, then towards Kahuro as  victims passengers, on command, surrendered  what they had to the robbers.  The  robbers took a pair of shoes from P.W.2, his two handbags with eight  University  Library Cards having  the name of P.W.2.  He also gave the robbers Kshs.300/- . They left his clothes, from the bags, on the floor.  Subsequently the motor vehicle  got stuck and the robbers  left their victims on the motor vehicle and went away.  The library cards  were  hidden inside a side pocket of the  handbag.

This witness,  like P.W.1, claimed that  before the robbers left, they asked  victims to look at them properly.  Those  were robbers who had initially commanded their victims to look down and keep  in that position.

P.W.2 claimed to have been able  to identify the robber who was seated next  to the driver in the driver’s cabin and told the court he picked  that person at the identification parade and was in the trial the second accused, now third appellant.

After P.W.2 recorded his statement  with the police, he was later informed  his two bags, pair of shoes and University  cards  were recovered.  He identified them  at the police station and in the trial court.

P.W.3 was the motor vehicle conductor who run away before anything  was robbed from him.  But told the court how one of the passengers  claimed he wanted to alight and P.W.3  caused the driver to stop for the passenger to alight.  Instead of alighting,  there was hijacking of the motor vehicle  and P.W.3 had to run and escape later.  He went and reported the matter to Kahuro Police Station.  He said he subsequently went to the identification parade but his evidence  is not clear whether he identified  one suspect  only or identified all the suspects.  He appears to have been one person the third accused, now second appellant.

P.W.4, Stephen Muchiri, another passenger victim told the court that three of the robbers had pistols  and one a panga when they took Kshs. 5,000/- from him before the motor vehicle he referred  to as Nissan  got stuck and the robbers abandoned the motor vehicle.  He said he identified the Third Accused,  shows  Second  Appellant, on the identification parade.  But did not connect that identification with the one he said he had of the person who took his money and struck him.

P.W.5, Paul Murimi Wanjiru, also a passenger victim, explained what happened  as the motor  vehicle  was hijacked before it got stuck into a ditch  and his money taken and he subsequently identified the second accused, now third Appellant,  and the First accused, now Fourth Appellant, at police identification parade.  He talks as if the Fourth Appellant  had what he described as “rasta”  hair and that the Third Appellant  had an ear cut but it is not clear whether the witness was saying these because he was seeing the Appellant in court.

The above  five witnesses were the only witnesses who were on the hijacked  motor vehicle and gave evidence in  the trial.  Out of the five witnesses P.W.3, Peter Ithigu Mwangi, the vehicle  conductor was  not robbed anything and therefore  was not a complainant.  It follows that only complainants  in counts one to four gave evidence.  The six remaining  witnesses therefore  gave evidence either as arresting officers or officers conducting  police identification parades or officers recording  statements from accused persons.

Starting with arresting officers, Inspector Francis Kamande, then at Murang’a Police station, gave evidence as P.W.7.  He told court  that on 10th April, 1999 he was at Murang’a police station when  he received  information concerning  the hijacking of motor  vehicle  Reg. No. KAE 077 Y  and that the hijackers  were driving it towards Kahuro.  In the company of Inspector Njoka, Sergeant Mwaura Corporal Koech and Corporal Muriithi took a landrover and went  towards  Kahuro.  While on the way they received information the vehicle had been abandoned  at Gatundu.  They went to Gatundu and having seen the motor  vehicle , they went for a police dog handler from Murang’a.

They subsequently received information the suspects had been seen going to the home of one Thuo.  They were taken  to that home and saw some four  people sitting outside  smoking.  By  then there was darkness  but Inspector Kamande’s team could see fire on lighted cigarettes  although it was raining as the suspects were sitting next to a house wall.

The police officers having taken positions  to enable them arrest  the suspects, confronted the  suspects in that home, first firing in the air to command  respect as the suspects  outside the house were  ordered to lie down in the presence  of a police dog – the  officers  converging  towards the suspect house as pre-arranged.  They confined the four suspects   outside  the house, and entered with the suspects into the house as the officers looked  for the missing two suspects  the information they had being that the suspects  had been six.

In the house there was a tin lamp and inside a bedroom  the officers found one other suspect  covering himself  under a mattress  on a bed.  The suspect  with “ a rasta”  was ordered to uncover himself  and obeyed and was  apprehended and found  in possession of a home made toy pistol.  The suspect was tied like the first four had been and was taken to where the four were as the police continued  to look for the sixth suspect whom they found under a bed in a table room.  The suspect was struggling to cling on the bed so that he remains  hanging under it to avoid being seen but unfortunately  he lost the grip and as he fell down with his plastic  home made toy pistol, he was discovered and apprehended.  This suspect was said to be the Fourth Accused, now First Appellant, while the one found hiding under a mattress was said to have been the First Accused, now Fourth Appellant.  The four suspects  who were found outside the house were also found in possession of another toy pistol.

All those  pistols were produced as exhibits during the trial.    Inspector Kamande told the court that he saw  three bags but did not know the contents as he did not check the bags as  he subsequently  left the case with CID personnel after the suspects were taken to Murang’a Police Station.

Corporal Joseph Koech, then of the CID  personnel at Murang’a, gave evidence as P.W.9.  Apart from repeating what Inspector Kamande  told the court added that among the recoveries were Kenyatta University Library cards and a pair of shoes which had been marked MFI 9 and 8 respectively when  P.W.2  was talking about them telling the  court he had identified them after they had been recovered.  Corporal Joseph Koech produced them  as exhibits.

Among  the recoveries  Corporal Joseph Koech produced as exhibits was a radio cassette which P.W.1 had  identified as MFI 1 he said had been taken from the hijacked motor vehicle.

On the evidence of officers conducting identification  parades, there was Inspector Mutuku of Kahuro police station who said that on 4th April, 1999 at about  4. 40  P.M.  he conducted identification parade having been requested by Sergeant Mwaura to do so.  This witness  was P.W.8 and although he said conducted the parade on 4th April, 1999 and the identification parade forms he produced as exhibits 13 and 14 have the date 12th April, 1999, and bearing in mind that the offence of robbery is said to have been committed on 10th Aril, 1999, no effort was made either by the  prosecution or the trial Magistrate to remove the anomalies thereby  leaving us with no reliable evidence from identification parades conducted by Inspector Mutisya Mutuku.

Another problem we find  concerning the evidence of identification parade is that another police  Inspector  Joseph Gitonga was on the same date, at the same time, apparently at the same police station Muranga conducting another identification parade and it is not clear from the evidence how the police managed to conduct all those parades  smoothly and correctly.

Further  we note that the issues raised before us by appellants during the hearing of these appeals were not raised by the appellants before the trial Magistrate . But  reading  the evidence  of P.W.1 and P.W.3, it is apparent  that witnesses were being  given the opportunity  to see suspects before the witnesses went to the parade  to identify the suspects  also suspects  were made to look easily identifiable .That  may explain why no witness failed to identify the suspect  the witness was sent to a parade for.

From the above short comings therefore,  we find the evidence concerning police identification parades useless in these appeals.

We now move to the evidence from statements recorded from some of the  Appellants as by then the law governing admission of such statements in the evidence at trials had not been repealed.  First, was  the a charge and caution statement  recorded by Inspector Zablon  Shitanda, P.W.6, on 15th April, 1999 from the second Accused, now Third Appellant.  That statement  was  admitted in the evidence  following a trial within a trial.  It was a confession in which the Third  Appellant clearly  admitted having been one of the robbers in this case.  He said he was the one who took over the driving of the hijacked  motor vehicle  from P.W.1 and drove it upto the place where they  robbed  victim passengers  before the robbers abandoned  the motor vehicle and proceeded  with their loot to a home where the police found and arrested them after they had  shared out the money they –robbers-had robbed.

Having been  retracted, that confession needs corroboration.

The  other statement  to consider  is the one recorded by Inspector  Daniel Musao  who gave evidence as  P.W.11 . Recorded  on 15th April, 1999 from Naftali Mumo Mwangi the Third Accused now Second Appellant.  The statement was also admitted in the evidence  following a trial within a trial as the Appellant  had retracted it.  It was a confession  in which the Second  Appellant clearly admitted  having been one of the robbers in this case.  Having been retracted that confession also needs corroboration.

With that, we end our overview of the prosecution’s evidence.  We  now turn to the defence  evidence starting with  the First Appellant –James Muturi Kuria Wamuthoni.  He was  the Fourth Accused and defended  himself on oath.

His defence  was very brief  talking of an incident on 10th April, 1999  when he was arrested by the Police while taking traditional liquor in the evening  at the home of the First Accused.  Although  he said “We  were arrested” he did not reveal the other people  arrested  and  taken with him to  the police station Muranga.  He said he had gone to that home at about 1. 00 p.m. . He said that what Inspector  Kamande said about  him was not true.

The Second  Appellant  who was the Third Accused  denied that he committed the offence. He said that on 10th April, 1999 he had gone to the home of his aunt and was  with the Sixth Accused.  They found  the First Accused who  entertained  them with beer.  As they continued taking beer  till 7. 30 p.m, police officers went to the place and arrested him and his, co-accused as they did not run away when other people  run away.  During  cross examination  he said they were many people  where  they were drinking but it was only six people who did not runaway and were arrested. Rasta  was arrested from inside the house.  He said the First Accused  was his cousin and their witness was their aunt.

The Third Appellant  who was  the Second Accused told the Court,  also on oath, about his arrest on 10th April, 1999  from the house of Kiragu  when taking traditional  liquor.  He was with the Fourth and Fifth Accused  and they were there until about  7. 30 p.m. when they were arrested  by the police and  taken to Murang’a Police station.  The Third Appellant  denied having  participated  in the robbery  arguing that the whole day he was at Kahuro and never boarded  any vehicle.  The arrest was at the home of the First Accused.

The Fourth Appellant who was the First Accused told the court that on 10th April, 1999  he was at his home at Mugoiri with people who  were taking  traditional  liquor until about 7. 30 p.m. when police officers  came and customers who were outside started  running away.  He entered  the house to hide the liquor.  He heard  a gun shot and as he was getting out, he met police officers who arrested  him  and took  him to  Muranga Police station . During  cross examination,  he told the court that the house in which he was found  was his.  He did not accept he was arrested while in bed hiding under a mattress.  He said nothing  was recovered  from him.  He added  that what witnesses  said against him was lies.  He accepted  that by then he had “Rasta”.

The Fifth  Appellant who was the Sixth Accused defended himself saying on 10th April, 1999 he went with Mumo  to his aunt’s home where they were welcomed  by the First Accused who gave them traditional liquor and  they  started drinking  many  people.  About 7. 30 p.m.  he heard  gun shots and saw people run away as he remained because he had seen nothing.  Police found  him and arrested him taking him to Muranga Police Station together with his co accused.

The Sixth Appellant who was the Fifth Accused told the court that on 10th April, 1999 he went to take  traditional liquor with Muturi and Maina Gachao and that Kiragu was selling the liquor.  They  were there by 12. 30 p.m. . At  7. 30 p.m. police officers went and arrested them and took them to Muranga  police station.  He also claimed  some people  run away.  No body  was shot.  Nobody was caught  by police -dog which was present  with the police.  He did not accept he was in  Nairobi and became a passenger  on the hijacked  motor vehicle.

Joyce  Muthoni Thuo  gave evidence as a defence witness after  attending court sessions and listening  as prosecution witnesses gave  evidence against  the appellants.  She told the court she was the mother of the Fourth Appellant  and that the Second Appellant was  a son of her sister and that the First Appellant  was a person who had supplied  her with building material and that the Fifth Appellant  was a  friend  of Mumo . She did not know the Third and Sixth Appellants.

She said that Naftali Mumo went to her home on 10th April, 1999  at 10. 00 a.m. with the Fifth Appellant  and the Fourth Appellant  found them there when  he came from  shamba work. They ate and took liquor and were joined by the First Appellant  who was with other people.  It started  raining at 4. 00 p.m. and no customer left and nobody went to her home. At 7. 30 p.m.  police officers came and asked her whether she could tell them the owner of the home.  She told them that was the home of Thuo Ngecha. When she saw more police officers come in a landrover ,she ran away and police shot in the air.  She said she was one of those taken to Muranga Police Station. Spent the  night there and was released the following day.

She claimed  some people  run away at the time of the arrest and that all the accused persons were  in her house.  The dog was not released and no body was shot.  She said what the police told the court  was lies.  She said the accused were in Nairobi.

That concluded  defence evidence where all accused persons  were sworn and therefore  got cross examined  by the prosecutor as was their single witness.

That over view  puts us in a  better position  to move to the conclusion bearing in mind what has been said on each side during the hearing of these appeals.  Perhaps it is better to point out at this stage that in the circumstances of this case, it was not necessary  for the prosecution  to  prove ownership  of the hijacked motor  vehicle.  What  the prosecution  needed to  do was  to prove the robbery and further prove that Appellants  were the robbers.  Further, we find nothing wrong with the way the said motor vehicle was produced as an exhibit.

Otherwise this was robbery which took place during the day motor vehicle Reg. No. KAE 077 Y having left Nairobi at about  4. 00 p.m. with 18 passengers  who included  the suspected robbers.  The hijack incident at about 6. 00 p.m. by six out of the 18 passengers  who had been freely mingling a short while earlier.  The odeal did not take  more than one hour as within a duration of less than one hour the robbers  carried away their loot abandoning  victim passengers on the motor vehicle which was by then struck in a ditch. As the robbers walked away, they  were being seen by victim passengers and the legitimate driver and some of these victims  told the trial court that some of the robbers  were even asking the victims to look at them  properly at the time the robbers were leaving  although during the process of robbery  victims were commanded  to look down and some have claimed were ordered to lie down and were  beaten.

Police subsequently messed up the evidence  of identification which we therefore find difficult  to use as we cannot improve  that evidence.  But there is evidence that as information concerning the robbery  quickly spread  around the area of the robbery, police  got information concerning  the whereabouts of the suspects whose number six  became known.  We have found nothing to show that police begun acting on that information after they had been contacted  by victims.  It looks like the police  took action before they met victims as that was the same evening  between  7. 30 p.m. and 8. 00 p.m. when all  the six suspects  were arrested by the police at the home of the Fourth Appellant  and taken to Murang’a Police Station with recovered weapons  and exhibits as evidence of the hijacked  motor vehicle was there for everybody  who went to the scene to see.

Details concerning the arrest, for example,  what  Inspector Kamande  said as compared to what Corporal  Koech said as to where the First Appellant  was in “Rasta’s” compound at the minute of his arrest and whether or not “Rasta” was in or on or outside bed  with or without mattress  at the minute of his arrest, do not matter-in the circumstances  of this case.  What is important ,  in our view, is that among the recoveries the arresting police made, were not only dangerous  weapons  but also a car radio cassette which had been removed  from the hijacked motor vehicle  and was subsequently identified by the then regular driver, P.W.1, and the conductor P.W.3, of that motor vehicle.  Also so recovered were two handbags and a pair of shoes belonging  to P.W.2 a Kenyatta University student who subsequently  identified  the items.  Moreover one of the bags had the student’s University  Library Cards each with his name on –kept inside  a side pocket which the robbers seem to have had no time  to check  and throw out the contents as they had done with the cloth contents of the bags P.W.2 said the robbers poured on the floor of the motor vehicle  before taking away the bags.

We think the recovery of the radio cassette, the two handbags, the pair of shoes and the University Library Cards  provided a strong connecting link between the Appellants  and the robbers.  That link is more strengthened  by the fact that recovery was made within  a matter of only a few hours from the time of robbery.  With respect to the Second and Third Appellants,  the aforementioned evidence corroborates the confession of each of those two  Appellants. Although each of the six appellants, in his defence, has tried to distance himself from the robbery, it is our view that none of them has succeeded  in distancing himself.

There is no evidence  that the money robbed  was recovered although  some may have been recovered but nobody  simply wants to talk about it, and it is apparent to us that Appellants  sat down to work out water tight  defence to defeat,  together  with their witness Joyce Muthoni Thuo, the prosecution’s case.  Each therefore avoided  mention of recovered robbed exhibits  which  were found in the house where the Appellants were.

We hold that the defences advanced were framed defences to defeat  the course  of justice as none of them was a truthful  defence.  We are strengthened  in that decision  bearing in mind that even the Second  and Third Appellants, who confessed  to the robbery, came out with the type of defence each put on record.  These  cannot, be truthful people.  We reject the defence advanced by each appellant.

We must however point out that the robberies proved during the trial were robberies  as set out in counts one, two ,three and four only.  Counts five to thirteen were not proved the ,victim or complainant in each count having failed to give  evidence in support of what the robbers  are alleged  to have done against her or him. Appellants  should not have been convicted in counts five to thirteen and in that respect we do hereby  allow each appellant’s appeal with respect to counts  five to thirteen.  Quash  his conviction  and set aside the sentences on each of counts five to thirteen.

We dismiss the appeal of each appellant with respect to counts one to four.

But as we said at the beginning, the appellants were  convicted and sentenced under Section  296(1) instead of Section 296(2)  of the Penal Code.  The  robbers  were six.  They were  armed with dangerous  weapons.  They used violence  during  the robbery although  the violence used  did not result into injury,  which was not necessary in any case. Rightly, conviction and sentence  ought to have been under Section 296(2).

We warned appellants against the danger of proceedings with prosecution of their appeals.  They elected to proceed with prosecution of the appeals and have to face the consequences  as the learned Provincial State Counsel also submitted that the  conviction and sentence be under the correct law.

Accordingly, we do hereby quash  the conviction of each appellant under Section 296(1) of the Penal Code on counts one to four and set aside the sentence imposed in each count thereof.

We do  hereby substitute the conviction of each appellant in counts one to four with a conviction under Section 296(2) of the Penal Code respecting each count.

In the circumstances, each appellant is hereby sentenced to suffer death as mandatorily provided by Section 296(2) of the Penal Code  and other enabling  Provisions  of the law in respect of count one.  Sentences  on counts two, three and four be in abeyance.

Dated this 27rd day of  September, 2006.

J.M.KHAMONI

JUDGE

H.M.OKWENGU

JUDGE