James Omondi Onyango v Republic [2014] KECA 582 (KLR)

IN THE COURT OF APPEAL

AT  KISUMU

(CORAM:  ONYANGO OTIENO, AZANGALALA & KANTAI, JJ. A)

CRIMINAL APPEAL NO.  27   OF 2012

BETWEEN

JAMES OMONDI ONYANGO   ................................................  APPELLANT

AND

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

(Appeal from a  Judgment of the High Court of Kenya at

Kisumu,(Abida Aroni & Chemitei, JJ)  dated  13th March,   2012

in

HCCRA  NO.  102 & 103  OF 2007)

********************

JUDGEMENT OF THE COURT

The appellant, James Omondi Onyango was charged jointly with another before the Principal Magistrates' Court, Siaya, with the offence  of robbery with violence contrary to  Section 296 (2) of the Penal Code particulars being that on the 31st day of July, 2006 at Karapul sub-location in Siaya District within  Nyanza Province, jointly with others  not before the court while armed with dangerous weapons namely  rungus and iron bars robbed Joseph Augoh Otieno of his money Kshs. 3,500/= and that at or immediately  after or immediately before the time of such robbery they wounded the said complainant.  In a judgement delivered on 10th July, 2007 by the learned Principal Magistrate (G. K. Mwaura) the appellant was convicted and was sentenced to death.   The first appeal to the High Court of Kenya at Kisumu was heard by Ali-Aroni and H. K. Chemitei, JJ, who in a judgement delivered on 13th March 2012 dismissed the  appeal but reviewed the sentence ordering that the appellant serves fourteen (14) years custodial sentence  from the date of the High Court judgement.

The appellant was still dissatisfied with these findings and filed this appeal premised on four grounds of appeal which were drawn by the appellants counsel, Mochere and Company Advocates.  In the first ground of appeal the appellant complains that the first appellate court failed  to evaluate the evidence or selectively  evaluated the same failing to notice  that the appellant was not  mentioned in the first report.  In the second ground it is alleged that the first appellate court erred in law and fact  because the charge did  not comply with Sections 89 (1) and 134  of the Criminal Procedure Code.  The complaint in the third ground is that the first appellate court erred in law and fact  in upholding conviction when there  was no cogent evidence to  sustain conviction while in the last ground which is not materially different from  the third ground it is alleged that the first appellate  court erred in law and fact in upholding conviction based on contradictory and un-corroborated  evidence.

This is a second appeal and we are concerned with points of law.  We are bound by the concurrent findings of fact made by the lower courts unless those findings are shown not to be based on evidence – See Njoroge v R [1982] KLR 388 and Thiongo v R [2004] IEA 333

The case for the  prosecution was through the evidence of four  witnesses and  it was that on 31st July, 2006 at  6. 30 p.m or 8. 30 p.m Joseph Otieno Oungo (this last name is given as “Augoh” in the charge sheet) (PW1) (Otieno)  who had been visited at his home by  his friend called Martin decided  to see off this friend who lived in  Rabango.   They followed a short-cut  route which was bushy.  Before they reached a hotel called  Sussy they saw six men who were dressed in black long coats not dissimilar  to those worn by the police.  These men ordered them to stop and  to kneel down.   One of them who Otieno identified as Oduor who he knew before flashed a torch on Otieno and hit him with a metal bar.  Meanwhile  the person being escorted by Otieno – who the evidence reveals to be  Samson Odongo  Oloo (PW3) (Odongo) – managed to escape, ran to Sussy hotel or bar, alerted watchmen who were there and they all proceeded to the scene but  found the assailants gone and Otieno injured.  Otieno stated that the assailants had surrounded him, lit torches by which he was able to recognize the man called Oduor and the appellant and they  frisked him removing money from his pocket before escaping.   Otieno gave the names of Oduor and of the appellant to the watchmen and  to the police the following day  and was treated at Siaya  District Hospital.

Odongo stated in his evidence that:

“.....On 31. 7.06 at around 8. 00p.m I was with Joseph  Otieno.  At 8. 30 p.m I began  to escort him towards his  home....”

And that they met the assailants as per Otienos' testimony.  Like  Otieno he recognized Oduor and the appellant who were people he knew before as they  came from the same village.

Peter Amoth, a registered Clinical  Officer at Kadenge Ratuoro Health Centre attended to Otieno and certified the injuries he  had suffered as bodily harm.  He produced a P3 Form as part of the evidence in the  case before the trial court.  In cross – examination this witness  insisted that he attended to Otieno on 31st April, 2006 and in re-examination stated that he completed P3 Form on 22nd August, 2006.  This date – 31st April, 2006 – was also given by Odongo who in cross – examination stated:

“..... He went for treatment on the same night.  He went to hospital on 31. 4.06. ...”

No. 81362 PC Zakayo Chepkeum of Crime Branch, Siaya Police Station, received a report on the incident from Otieno on 1st August,  2006  who further told him that he knew two of the attackers as “Erick Ngonga and James Omondi”.  This witness also testified  that on 16th August, 2006 he  was taken by Otieno to the homes of the two persons named  and he arrested them.   He also stated that:

“..... The complainant came to the police station later and  said it was then also (sic) knew the two suspects before over  other matters and knew it was people who were referred to by the complainant......”

In cross examination by the appellant this witness stated:

“....I wrote the complainant's statement on 27. 8.06.  I knew you before due to other  investigation …..... Samson Odongo recorded his statement on 28. 8.06. ”

That was the evidence that the prosecution laid before the trial court which found that the  appellant had a case to answer.  The appellant in an unsworn  statement testified that he was  at a funeral on 16th August 2006 when, on getting home he  was confronted by ten police  officers one of who he knew by name.   His inquiry on why he  was being arrested met a response  that it was over an old case of a generator which generator  he still refused to return to its owner because he was owed a lot  of money presumably by the  person from whom he had  taken the generator.  He denied  being involved in any way with the charge then before the  court.

The trial magistrate  was satisfied that the prosecution had proved the case against the  appellant beyond reasonable  doubt and convicted him accordingly.

When the appeal came for hearing before  us on 19th March, 2014 Mr. James Mochere, the learned counsel for the appellant, abandoned  grounds 2 and 3 of the Memorandum of Appeal and proceeded only on grounds 1 and 4.  Counsel argued that the first appellate court  failed in its duty of re-evaluating  the evidence because, had it done so, urged counsel, it would  have noted inconsistencies in the  evidence such as in the evidence  of Otieno who stated that he  was escorting “Martin” while  the person who stated to have been in Otienos' company was Samson Odongo Oloo.  The  other matters noted by learned  counsel were Otienos' reference  to a “hotel” while Odongo talked  of a “bar.”  Counsel also referred to the  evidence of the Clinical Officer who stated that he attended to the  complainant on 31st April, 2006 while  the offence was committed on  31st July, 2006.

Mr. C. A. Abele, the learned Assistant Director of Public Prosecutions in supporting  conviction submitted that the first  appellate court had properly carried  out its mandate of re-evaluating the evidence and reaching an independent  decision but disagreed with that court  for reducing sentence to a term of imprisonment of  fourteen (14) years instead  of the death sentence imposed by the trial court.  Counsel while conceding that there were inconsistencies submitted that such inconsistencies as in the name “Martin” or who between Otieno and Odongo was escorting the other were not material  to the overall evidence offered by the prosecution.

We have  considered the whole record,  the submissions by learned  counsel and the law.

On the issue of identification learned  counsel for the Republic submits that Otieno and Odongo correctly identified the appellant who was not only a village mate but that  they had all attended the same school.  In that event identification would be  by recognition which is more  reliable.  Otieno in evidence testified that:

“.... one of them flashed a torch  at me.   The men then began to move towards me I saw them by the bean (beam) of the touch (torch).

And in cross-examination:

“....I did not have a torch.   I saw the 6 men when they were  6 metres away....”

So the evidence before the trial court was that the only source of light to illuminate the scene was one torch shone by the attackers against Otieno and Odongo.

The first appellate  court in re-evaluating this piece of evidence noted that:

“... the nature of the intensity of the lights from the torches is not very clear.   But one thing that it seemed certain is that as a consequence of  the meeting between the appellants and PW1, PW3, the  complainant and his colleague managed to recognize the  appellant.   The complainant called the 1st appellant  and went further to report to the police the full names....”

Is that so?

In the report recorded in the Occurrence  Book which was tendered in evidence  and which was  reproduced in the  judgement of the first appellate  court the complainant reported inter alia that he was attacked at 8. 20 p.m by 6 men and that he recognized one of them as  Ngonga Oduor.  Who “Ngonga Oduor” is did not come out in the evidence.

If, indeed, Otieno and Odongo had recognized the appellant at the scene  as they alleged in their evidence  why was the name not given to the police when Otieno reported the matter the next morning?

Also of concern to us is what emerges  from the evidence of Police Constable Zakayo Chepkkeum who received Otienos' report on 1st August, 2006.  He testified that Otieno informed him  that he had recognized two of the attackers as the appellant and Erick Ngonga.  He did not however explain the reason why it took him up to 16th August, 2006 to go to the home of the  appellant to arrest him when he already knew the appellant through other cases he was handling.   Neither is there an explanation as to why Otienos' statement was not recorded  until 27th August, 2006 and that  of Odongo on 28th August, 2006  when these witnesses were readily  available.

It was the evidence of Otieno and Odongo that when Odongo  managed to flee from the scene  he reported the matter to watchmen who were at Sussy bar or hotel and that Odongo and the  watchmen went to the scene.  No explanation was offered why the prosecution did not call any of these watchmen to testify in the case.

On the other ground of appeal learned counsel for the  appellant submitted that the  first appellate court failed in its duty because it did not  re-evaluate the evidence which  counsel thought was riddled  with inconsistencies.  That submission is not idle at all as is evidenced by the following  instances.

Otieno stated that on 31st July, 2006 he was escorting Martin, his friend who had visited  him at his home.

Odongo stated that on that  day:

“...I was with Joseph Otieno.  At 8. 30 p.m I began to escort him to his home...”

The trial court and the first appellate court did not establish who “Martin” was.  He  certainly was not Odongo  as Odongo gave his full names  to court and would have said he was also called “Martin” if this was his name.

The Clinical Officer testified that he attended Otieno on 31st April, 2006.  Yet the offence  was committed on 31st July, 2006.

The first appellate court should  also have been concerned by  the charge sheet itself.   The  charge sheet indicates that  the appellant was arrested on 27th August, 2006.  And yet the evidence of the complainant and that of the police officer was to the effect that the appellant was arrested on 16th August, 2006.

We think we have said enough to show that the trial court convicted the appellant  on evidence which was not  safe and the first appellate court with respect  failed in its duty of re-evaluating and analysing the  evidence to reach its own  independent decision.  In the  event the appeal succeeds and we allow it accordingly by quashing the conviction of the appellant and  setting aside the sentence imposed.   The appellant to be  set at liberty forthwith  unless he is otherwise lawfully held.

Dated and Delivered at Kisumu this   9th day of  May, 2014.

J. W. ONYANGO OTIENO

….................................

JUDGE OF APPEAL

F. AZANGALALA

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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