John Kalwelo v Republic [2017] KEHC 2045 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

H.C.C.R.A NO. 69 OF 2013

JOHN KALWELO……………………………APPELLANT

VERSUS

REPUBLIC………………………………….RESPONDENT

J U D G M E N T

The appellant was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code.  The particulars of the offence are that the appellant on the 30th day of October, 2012 at Meru town in Imenti North District within Meru County of Eastern Province jointly with others not before court while armed with a panga robbed PAUL LENGUMA of a mobile phone make Samsung Galaxy valued at Kshs.15,000/- and a wallet containing cash Kshs.6,5000/- and at the time of such robbery threatened to use violence against the said PAUL LENGUMA.

The trial court convicted the appellant and sentenced him to suffer death.  The grounds of appeal are that:-

1.  The circumstances were not conducive for positive identification.

2. The intensity of light used at the scene is not clear.

3. The prosecution case was not proved beyond reasonable doubt

4. The appellant’s defence was rejected without good reasons.

The appellant submit that the circumstances at the scene were not conducive for positive identification.  According to the complainant the robbery incident occurred very fast.  The intensity and position of the security lights from buildings is not clear.  PW2 stated that he did hide himself and was therefore not able to know who PW1 was chasing.  PW2 did not tell the court where he was hiding.  According to the appellant, the defence evidence was reasonable.  No exhibit was recovered from him.

Mr. Namiti opposed the appeal. Counsel contend that the incident occurred at about fifteen minutes to 6. 00a.m, PW1 was robbed by three people.  One of them was armed with a panga.  The incident occurred in Meru town and there was security lights.  Appellant was arrested by a watchman and taken to the police Station.

This is a first appeal.  The court has to evaluate the evidence afresh and make its own conclusion.  PW1 PC PAUL LEONARD was the complainant.  On 29/10/2012 he left Mombasa on a bus.  He arrived at Meru on 30/10/2012 at 5. 45 a.m and alighted at Sunbird Bus Stage.  He opted to buy airtime from a kiosk.  Three men accosted him.  One was armed with a panga.  One of them ransacked him.  PW1 is a General Service Officer (GSU) attached to the anti-stock theft unit.  The robbers took his Samsung Galaxy phone worth Kshs.15,000/-, his wallet containing Kshs.6,500/-, ATM and ID Cards.

It is PW1’s further evidence that it was the appellant who ransacked his pockets and removed the cellphone and wallet.  He did not know the appellant before.  The visibility was clear as there were security lights from nearby shops.  He chased the appellant for about 50metres before he was arrested by the watchman (PW2).

PW2 HENRY  NTONGAI was a watchman in Meru Town.  On 30. 10. 2012 at about 5. 50 am he saw three men running towards where he was. He noted that one of them was carrying a panga.  He then saw the appellant chasing the three men asking for help.  PW2 decided to hide and as the three men approached him he grabbed one of them.  The appellant was arrested and taken to Meru Police Station.  He did not know the appellant before.  Nothing was recovered from the appellant.  PW3 SGT. PETER MAUNDU was based at the Meru Police Station.  On 30. 10. 2012 at around 6. 00 a.m. two men escorted the appellant to the police station.  He was informed that the appellant had robbed one of  them.  The victim was PW1 who is a Police Officer.  He booked the appellant and had him charged with the offence.

In his unsworn defence the appellant testified that he is a motor bike rider.  On 29. 10. 2012 he was heading to work when he met a man who told him that he was new in Meru.  He told him that he had been robbed by three men and asked him for the way to the police station.  While they were on their way they met a watchman.  The watchman talked to the complainant who informed him what had happened.  They proceeded to the police station.  They were told to wait and after one hour PW3 took up the case.  He was then framed as the robber.  He asked for the occurrence book of 29. 10. 2012 to be produced.  DW2 PC DANIEL OVESEKEY was stationed at Meru Police Station.  He produced OB Ref. No.9 of 30. 10. 12 and OB No.54 of the same date.  Both OB’s related to the same case.  The first one was a report that PW1 had been robbed by three men.  The second one is a report when the appellant was searched and placed in the cells.

The main issue for determination is whether the prosecution proved its case beyond reasonable doubt.  It is established that PW1 travelled overnight from Mombasa to Meru and arrived at Meru at about 5. 45a.m.  According to him, he was accosted by three men and robbed of his personal items.  He chased them and the appellant was arrested.  It is his evidence that there were other people at the stage where he was robbed.  According to PW2, he decided to hide and grabbed one of the robbers.  In his defence, the appellant confirmed that he was in the area but was not one of the robbers.

I have perused the charge sheet and it is indicated that it was amended on 01/11/2012.  This is the date the appellant was charged with the offence.  I have also noted that although the charge was that of robbery with violence the particulars were initially for simple robbery.  There are some insertions on the original charge sheet.  This includes the words “not before court” and “at the time of such robbery threatened to use violence against the said PAUL LENGUMO”.It is not clear who made the amendments as the reocrds of the trial court does not show if a request to amend the charge was made.  The signature on the amendments on the charge sheet is different from that of the trial Magistrate as well as the original signature on the charge sheet.  I have also observed from the two OB reports that the appellant was taken to the police station at about 06. 40hrs.  It is not clear how the appellant stayed at the police station upto 5. 40pm for him to be put in the cells.  The OB Ref. No.54 was recorded at 17. 40hrs and indicated that the appellant was now being searched and placed in the cells by PC KAPTUM.

The evidence of PW2 is that he decided to hide and manage to grab one of the robbers.  According to PW1 the robbers were running in an open area.  It is not clear how PW2 managed to hide himself and waylaid the robbers.  One of the robbers had a panga and did not attack PW2 when he observed that his colleague had been arrested.  The complainant was a Police Officer and the investigation gaps leaves doubt as to whether the offence was that of robbery with violence or simple robbery or whether indeed the appellant was arrested as indicated by PW2.  The defence evidence, although unsworn, is not an afterthought.  The appellant placed himself at the place of the incident but denied that he was one of the robbers.  I don’t understand why would the appellant be taken to the police staion and kept outside the cells from 6. 00 a.m to 5. 40p.m.  Only two people gave their statements.  It is clear that PW3 took over the case after the appellant had already been booked at the police station.  This is in line with the defence evidence.  During cross-examination of PW3, the appellant enquired from PW3 whether he was the one who booked the report.  The incident took place very fast as per the evidence of PW1 and it is possible that the wrong person was arrested.  PW1 and PW2 did not know the appellant.  Nothing was recovered from him although PW1 alleged that the appellant threw the stolen items to his colleagues.  PW1 did not describe how the appellant was dressed for him to have followed him for the distance of 50metres.  It is also not clear whether PW2 saw the robbers from that distance of 50metres. It was about 5. 50 a.m and definitely not very bright.

From the evidence on record, I do find that the prosecution did not prove its case beyond reasonable doubt.  The appellant’s defence raises doubt on the prosecution evidence.  The manner in which the appellant was kept at the police station and ultimately placed at the cells also raises doubt.  I do find that the conviction is not safe. The appeal is merited and is hereby allowed.  The appellant shall be set at liberty unless otherwise lawfully held.

DATED AT EMBU THIS …………DAY OF SEPTEMBER, 2017.

S. J. CHITEMBWE

JUDGE

DATED, SIGNED AND DELIVERED AT MERU THIS 5TH DAY OF OCTOBER  2017.

A. MABEYA

JUDGE

IN PRESENCE OF:

………………………………… for Appellant

……………………………….... for Respondent.

………………………….……….Court Assistant